EXHIBIT 1.1
FORM OF
UNDERWRITING
AGREEMENT
CPS AUTO RECEIVABLES TRUST 199[ ]-[ ] [$
] [ %] Class [A-1] Asset Backed Notes [$ ]
[ %] Class [A-2] Asset Backed Notes
UNDERWRITING AGREEMENT
[Date]
[Underwriter]
[ ]
[ ]
Ladies and Gentlemen:
CPS Receivables Corp. (the "Company"), a California corporation and
wholly-owned subsidiary of Consumer Portfolio Services, Inc., a California
corporation ("CPS"), proposes to sell to you in your capacity as the Underwriter
(the "Underwriter"), [$ ] aggregate principal amount of CPS Auto Receivables
Trust 199[ ]-[ ] [ %] Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), [$
] aggregate principal amount of [ %] Asset Backed Notes, Class A-2 (the "Class
A-2 Notes"), [identify additional classes of Notes, if any] and, together with
the Class A-1 Notes, the "Notes"). The Notes will be issued by CPS Auto
Receivables Trust 199[ ]-[ ] (the "Trust") pursuant to the Indenture (the
"Indenture"), dated as of [ ], among the Trust and [ ], as trustee (the
"Trustee"). The assets of the Trust will include, among other things, a pool of
retail installment sale contracts and all rights and obligations thereunder (the
"Receivables"), all payments received thereon after [ ] (the "Cutoff Date"),
security interests in the new and used automobiles, light trucks, vans and
minivans securing the Receivables, certain bank accounts and the proceeds
thereof, and the right of the Company to receive certain insurance proceeds and
certain other property, all as more specifically described in the Sale and
Servicing Agreement, dated as of [ ], among the Trust, CPS, as servicer (in such
capacity, the "Servicer"), the Company, as Seller and Norwest Bank Minnesota,
National Association, as trustee. The Company and CPS will also undertake to
cause the Note Insurer to issue the Policy for the benefit of the Noteholders.
The Class A-1 Notes will be issued in an aggregate principal amount of
[$ ] and will bear interest at an annual rate equal to [ %] (the "Class A-1
Interest Rate"). The Class A-2 Notes will be issued in an aggregate principal
amount of [$ ] and will bear interest at an annual rate equal to [ %] (the
"Class A-2 Interest Rate"). [Describe additional classes of Notes, if any.] The
aggregate principal amount of the Notes will equal [ %] of the aggregate
principal balance of the Receivables as of the Cutoff Date. Calculations of
interest for each class of Notes will be in accordance with the provisions of
the Sale and Servicing Agreement.
The Certificates will be issued in an aggregate principal amount of [$
] which is equal to [ %] of the aggregate principal balance of the Receivables
as of the Cutoff Date. The Certificates will not be underwritten by the
Underwriter pursuant to this Agreement.
To the extent not otherwise defined herein, capitalized terms used
herein shall have the meanings assigned to such terms in the Indenture or, if
not defined therein, in the Sale and Servicing Agreement.
As the Underwriter, you have advised the Company that (a) you are
authorized to enter into this Agreement and (b) you are willing to purchase the
aggregate principal amount of each class of Notes set forth in Schedule I
hereto.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY, CPS, SAMCO
AND LINC.
The Company (with respect to the Company), CPS (with respect to CPS,
the Company, Samco and Linc), Samco (with respect to Samco), and Linc (with
respect to Linc), and both the Company and CPS in all other instances, each
represents and warrants to, and agrees with the Underwriter, as of the date
hereof and as of the Issuance, that:
(a) CPS has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-25301),
including a Base Prospectus, for registration of the offering and sale of the
Notes under the Securities Act of 1933, as amended (the "1933 Act"), and the
rules and regulations (the "1933 Act Regulations") of the Commission thereunder
which conforms with the requirements of the 1933 Act and the 1933 Act
Regulations and has become and remains effective. CPS has complied, and is in
compliance, with the conditions for the use of a Registration Statement on Form
S-3. The offering of the Notes is a Delayed Offering and, although the Base
Prospectus may not include all the information with respect to the Notes and the
offering thereof required by the 1933 Act and the 1933 Act Regulations to be
included in the Final Prospectus, the Base Prospectus includes all such
information required by the 1933 Act and the 1933 Act Regulations to be included
therein as of the Effective Date. The Company will hereafter file with the
Commission pursuant to Rules 415 and 424(b), a final supplement to the Base
Prospectus relating to the Notes and the offering
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thereof. As filed, such final supplement shall include all required information
with respect to the Notes and, except to the extent the Underwriter shall agree
in writing to any modification thereof, shall be in all substantive respects in
the form furnished to the Underwriter prior to the Execution Time or, to the
extent not completed at the Execution Time, shall be in such form with only such
specific additional information and other changes (beyond that contained in the
Base Prospectus and any Preliminary Final Prospectus) as the Company has advised
the Underwriter, prior to the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did, and when the
Final Prospectus is first filed (if required) in accordance with Rule 424(b) and
on the Closing Date (as defined below), the Final Prospectus (as supplemented
and amended as of the Closing Date) will, comply in all material respects with
the applicable requirements of the 1933 Act, the 1933 Act Regulations, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules and
regulations thereunder (the "1934 Act Regulations"); on the Effective Date, the
Registration Statement did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the date thereof,
the date of any filing pursuant to Rule 424(b) and the Closing Date, the Final
Prospectus (as supplemented and amended in the case of the Closing Date) will
not, include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading; provided,
however, that none of CPS, the Company, Samco or Linc makes any representations
or warranties as to the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with information specified in
Section 9(b) furnished in writing to the Company by the Underwriter specifically
for inclusion in the Registration Statement or the Final Prospectus (or any
supplement or amendment thereto) or the information regarding the Note Insurer
in or incorporated by reference in the Final Prospectus under the headings "The
Insurer" and "Incorporation of Certain Documents by Reference".
(c) The terms which follow, when used in this Agreement, shall have the
meanings indicated.
"Base Prospectus" shall mean the prospectus referred to in
Section 1(a) hereof contained in the Registration Statement at the
Effective Date.
"Delayed Offering" shall mean the offering of the Notes
pursuant to Rule 415 which does not commence promptly after the
effective date of the Registration Statement, with the result that only
information required pursuant to Rule 415 need be included in such
Registration Statement at the effective date thereof with respect to
the Notes.
"Effective Date" shall mean each date prior to the Execution
Time that the Registration Statement and any post-effective
amendment(s) thereto became effective and each date on and after the
date hereof on which a document incorporated by reference in the
Registration Statement is filed by the Company.
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"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Notes that is first filed pursuant to Rule 424(b) under
the 1933 Act after the Execution Time, together with the Base
Prospectus including all documents incorporated therein by reference,
exhibits, financial statements and notes thereto and related schedules
and other statistical and financial data and information included
therein, as amended at the Execution Time.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Base Prospectus which describes the Notes
and the offering thereof and is used prior to filing of the Final
Prospectus.
"Prospectus" shall mean, collectively, the Base Prospectus,
any Preliminary Final Prospectus and the Final Prospectus.
"Registration Statement" shall mean (i) the Registration
Statement referred to in Section 1(a) hereof, including all documents
incorporated therein by reference, exhibits, financial statements and
notes thereto and related schedules and other statistical and financial
data and information included therein, as amended at the Execution
Time; (ii) in the event any post-effective amendment thereto becomes
effective prior to the Closing Date, such Registration Statement as so
amended; and (iii) in the event any Rule 462(b) Registration Statement
becomes effective prior to the Closing Date, such Registration
Statement as so modified by the Rule 462(b) Registration Statement,
from and after the effectiveness thereof. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer
to such rules or regulation under the 1933 Act.
"Rule 430A Information" means information with respect to the
Notes and the offering thereof permitted to be omitted from the
Registration Statement when it became effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" means the Registration
Statement filed pursuant to Rule 462(b) under the 1933 Act relating to
the offering covered by the Registration Statement (File No.
333-25301).
Any reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the 1934 Act on or before
the Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be;
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and any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Base Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the 1934 Act after the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(d) Each of the Company and CPS is a corporation duly organized,
validly existing and in good standing under the laws of the State of California
and is duly qualified to transact business as a foreign corporation in each
jurisdiction in which it is required to be so qualified and in which the failure
to so qualify, taken in the aggregate, would have a material adverse effect on
it.
(e) Samco Acceptance Corp. ("Samco") is a corporation duly organized,
validly existing and in good standing under the laws of Delaware and is duly
qualified to transact business as a foreign corporation in each jurisdiction in
which it is required to be so qualified and in which failure to so qualify,
taken in the aggregate, would have a material adverse effect on it.
(f) Linc Acceptance Company LLC ("Linc") is a limited liability company
duly formed, validly existing and in good standing under the laws of Delaware
and is duly qualified to transact business as a foreign entity in each
jurisdiction in which it is required to be so qualified and in which failure to
so qualify, taken in the aggregate, would have a material adverse effect on it.
(g) Since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, there has not been any material
adverse change, or any development which could reasonably be expected to result
in a material adverse change, in or affecting the financial position,
shareholders' equity, business or properties, or results of operations of the
Company, CPS, Samco or Linc or the Company's or CPS's Samco's or Linc's ability
to perform its obligations under this Agreement, the Indenture, the Trust
Agreement or the Sale and Servicing Agreement or any of the other Basic
Documents (as defined below), other than as set forth or incorporated by
reference in the Registration Statement or as set forth in the Final Prospectus.
(h) Except for the registration of the Notes under the 1933 Act and
such consents, approvals, authorizations, registrations or qualifications as may
be required under the 1934 Act and applicable State securities or Blue Sky laws
in connection with the purchase and distribution of the Notes by the Underwriter
or the filing requirements of Rule 430A or Rule 424(b) under the 1933 Act, no
consent, approval, authorization or order of or declaration or filing with any
governmental authority is required for the issuance or sale of the Notes or the
consummation of the other transactions contemplated by this Agreement or the
Sale and Servicing Agreement or any of the other Basic Documents, except such as
have been duly made or obtained or as will be duly made or obtained on or before
the Closing Date.
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(i) The Commission has not issued an order preventing or suspending the
use of any Prospectus relating to the proposed offering of the Notes, nor
instituted proceedings for that purpose (and no proceedings for such purpose
are, to the knowledge of the Company or CPS, contemplated). No injunction,
restraining order or order of any nature by a federal or state court of
competent jurisdiction has, to the knowledge of the Company or CPS, been issued
which would prevent the issuance of the Notes. The Registration Statement
contains, and the Final Prospectus together with any amendments or supplements
thereto will contain, all statements which are required to be stated therein by,
and conform to, the requirements of the 1933 Act and the 1933 Act Regulations.
(j) The documents (other than the financial statements of the Insurer,
as to which no representation is made by CPS or the Company) which are
incorporated by reference in the Registration Statement and the Final Prospectus
or from which information is so incorporated by reference, as of the dates
thereof and the dates they were filed with the Commission, complied in all
material respects with the requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations, as applicable, and any
documents so filed and incorporated by reference subsequent to the Effective
Date shall, when they are filed with the Commission, conform in all material
respects with the requirements of the 1934 Act and the 1934 Act Regulations.
(k) Each of the Company, CPS, Linc and Samco confirms as of the date
hereof that it is in compliance with all provisions of Section 1 of Laws of
Florida, Chapter 92-198, An Act Relating to Disclosure of doing Business with
Cuba, and each of the Company, CPS, Linc and Samco further agrees that if it
commences engaging in business with the government of Cuba or with any person or
affiliate located in Cuba after the date the Registration Statement became
effective with the Commission or with the Florida Department of Banking and
Finance (the "Department"), whichever date is later, or if the information
included in the Final Prospectus, if any, concerning either the Company's,
CPS's, Linc's or Samco's business with Cuba or with any person or affiliate
located in Cuba changes in any material way, each of the Company, CPS, Linc and
Samco, as the case may be, will provide the Department notice of such business
or change, as appropriate, in a form acceptable to the Department.
(l) All representations and warranties of the Company, CPS, Linc and
Samco contained in each of the Basic Documents, including this Agreement, will
be true and correct in all material respects when delivered and as of the
Closing Date and are hereby incorporated by reference as if each such
representation and warranty were specifically made herein.
(m) Each of the Company, CPS, Linc and Samco has full power and
authority (corporate and other) to enter into and perform its obligations under
this Agreement, the Indenture, the Trust Agreement, the Sale and Servicing
Agreement, the CPS Purchase Agreement, the Samco Purchase Agreement, the Linc
Purchase Agreement, the Insurance Agreement, the Indemnification Agreement, the
Spread Account Agreement, the Lock-Box Agreement and the Servicing and Lockbox
Processing Assumption Agreement (collectively, the "Basic Documents"), and to
consummate the transactions contemplated hereby and thereby.
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(n) On or before the Closing Date, the direction by the Company to the
Trustee to authenticate the Notes will have been duly authorized by the Company,
the Notes will have been duly executed and delivered by the Company and, when
authenticated by the Trustee in accordance with the Indenture and delivered and
paid for pursuant to this Agreement, will be duly issued and will entitle the
holder thereof to the benefits and security afforded by the Indenture.
(o) This Agreement and each Basic Document to which the Company, CPS,
Samco or Linc is a party has been duly authorized, executed and delivered by
each of the Company, CPS, Linc and Samco, as applicable, and constitutes a valid
and binding agreement of each of the Company, CPS, Linc and Samco, as
applicable, enforceable against the Company, CPS, Linc and Samco in accordance
with its terms, subject as to the enforcement of remedies (x) to applicable
bankruptcy, insolvency, reorganization, moratorium, and other similar laws
affecting creditors' rights generally, (y) to general principles of equity
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law) and (z) with respect to rights of indemnity
under this Agreement, to limitations of public policy under applicable
securities laws.
(p) None of the Company, CPS, Samco or Linc is in breach or violation
of its Articles of Incorporation, Charter or Certificate of Formation, as
applicable, or By-Laws or Limited Liability Company Agreement, as applicable, or
in default in the performance or observance of any credit or security agreement
or other agreement or instrument to which it is a party or by which it or its
properties may be bound, or in violation of any applicable law, statute,
regulation, order or ordinance of any governmental body having jurisdiction over
it, which breach or violation would have a material adverse effect on the
ability of the Company or CPS or Samco or Linc to perform its obligations under
any of the Basic Documents or the Notes.
(q) The issuance and delivery of the Notes, the consummation of any
other of the transactions contemplated herein or in the Indenture, the Trust
Agreement, the Sale and Servicing Agreement or in any of the other Basic
Documents or the fulfillment of the terms of this Agreement, the Indenture, the
Trust Agreement, or the Sale and Servicing Agreement or any of the other Basic
Documents, subject to the registration of the Notes under the 1933 Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under the 1934 Act and applicable State securities or Blue Sky laws in
connection with the purchase and distribution of the Notes by the Underwriter or
the filing requirements of Rule 430A or Rule 424(b) under the 1933 Act, do not
and will not conflict with or violate any term or provision of the Articles of
Incorporation, Charter or Certificate of Formation, as applicable, or By-Laws or
Limited Liability Company Agreement of the Company, CPS, Samco or Linc, any
statute, order or regulation applicable to the Company, CPS, Samco or Linc of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over the Company, CPS, Samco or Linc and do not and will not
conflict with, result in a breach or violation or the acceleration of or
constitute a default under or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of the Company, CPS,
Samco or Linc (other than in favor of the Trustee, the Owner Trustee or as
otherwise permitted under the Indenture or
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the Sale and Servicing Agreement) pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company, CPS, Samco or Linc is a party or by which the Company, CPS,
Samco or Linc may be bound or to which any of the property or assets of the
Company, CPS, Samco or Linc may be subject except for conflicts, violations,
breaches, accelerations and defaults which would not, individually or in the
aggregate, be materially adverse to the Company, CPS, Samco or Linc or
materially adverse to the transactions contemplated by this Agreement or the
Basic Documents.
(r) Any taxes, fees and other governmental charges due on or prior to
the Closing Date (including, without limitation, sales taxes) in connection with
the execution, delivery and issuance of this Agreement, the Indenture, the Trust
Agreement, the Sale and Servicing Agreement, the other Basic Documents and the
Notes have been or will have been paid at or prior to the Closing Date.
(s) The CPS Receivables are chattel paper as defined in the Uniform
Commercial Code as in effect in the State of California, which is the State in
which the chief executive office of CPS is located. The Samco Receivables are
chattel paper as defined in the Uniform Commercial Code as in effect in the
State of Texas, which is the State in which the chief executive office of Samco
is located. The Linc Receivables are chattel paper as defined in the Uniform
Commercial Code as in effect in the State of Connecticut, which is the State in
which the chief executive office of Linc is located.
(t) Under generally accepted accounting principles, CPS will report its
transfer of the CPS Receivables to the Company pursuant to the CPS Purchase
Agreement as a sale of the CPS Receivables, Samco will report its transfer of
the Samco Receivables to the Company pursuant to the Samco Purchase Agreement as
a sale of the Samco Receivables Linc will report its transfer of the Linc
Receivables to the Company pursuant to the Linc Purchase Agreement as a sale of
the Linc Receivables and the Company will report its transfer of the Receivables
to the Trust pursuant to the Sale and Servicing Agreement as a sale of the
Receivables. Each of CPS and the Company has been advised by KPMG Peat Marwick,
Certified Public Accountants, that the transfers pursuant to the CPS Purchase
Agreement, the Samco Purchase Agreement, the Linc Purchase Agreement and the
Sale and Servicing Agreement will be so classified under generally accepted
accounting principles in accordance with Statement No. 77 of the Financial
Accounting Standards Board (December 1983) and with Statement No. 125 of the
Financial Accounting Standards Board (June 1996).
(u) Pursuant to the CPS Purchase Agreement, the Samco Purchase
Agreement and the Linc Purchase Agreement, CPS, Samco and Linc are transferring
to the Company ownership of the Receivables, the security interests in the
Financed Vehicles securing the Receivables, certain other property related to
the Receivables and the proceeds of each of the foregoing (collectively, the
"Trust Property"). Immediately prior to the transfer of any CPS Receivables to
the Company, CPS will be the sole owner of all right, title and interest in, and
will have good and marketable title to, the CPS Receivables. Immediately prior
to the transfer of any Samco Receivables to the Company, Samco will be the sole
owner of all right, title and interest in, and
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will have good and marketable title to, the Samco Receivables. Immediately prior
to the transfer of any Linc Receivables to the Company, Linc will be the sole
owner of all right, title and interest in, and has good and marketable title to,
the Linc Receivables. The assignment of the Receivables, including all the other
Conveyed Property including the proceeds thereof, to the Company pursuant to the
Purchase Agreements, vests in the Company all interests which are purported to
be conveyed thereby, free and clear of any liens, security interests or
encumbrances.
(v) Immediately prior to the transfer of any Receivables to the Trust,
the Company will be the sole owner of all right, title and interest in, and has
good and marketable title to, the Receivables and the other Trust Property. The
assignment of the Receivables and the other Trust Property, including all the
proceeds thereof, to the Trust pursuant to the Sale and Servicing Agreement,
vests in the Trust all interests which are purported to be conveyed thereby,
free and clear of any liens, security interests or encumbrances.
(w) Immediately prior to the transfer of any Receivables to the Trust,
the Company's interest in such Receivables and the proceeds thereof shall have
been perfected, UCC-1 financing statements (the "Financing Statements") (i)
evidencing the transfer of the CPS Receivables to the Company shall have been
filed in the Office of the Secretary of State of the State of California (the
"CPS Financing Statement"), (ii) evidencing the transfer of the Samco
Receivables to the Company shall have been filed in the Office of the Secretary
of State of the State of Texas (the "Samco Financing Statement"), (iii)
evidencing the transfer of the Linc Receivables to the Company shall have been
filed in the Office of the Secretary of State of the State of Connecticut (the
"Linc Financing Statement"), (iv) evidencing the transfer of the Receivables by
the Company to the Trust shall have been filed in the Office of the Secretary of
State of the State of California (the "Company Financing Statement"), and (v)
evidencing the pledge of the Receivables by the Trust to the Trustee shall have
been filed in the Office of the Secretary of State of the State of Delaware (the
"Trust Financing Statement") and there shall be no unreleased statements
affecting the Receivables filed in any such office other than the Financing
Statements.
(x) If a court concludes that (i) the transfer of the CPS Receivables
from CPS to the Company is a sale, then the interest of the Company in the CPS
Receivables and the proceeds thereof, will be perfected by virtue of the CPS
Financing Statement having been filed in the office of the Secretary of State of
the State of California, (ii) the transfer of the Samco Receivables from Samco
to the Company is a sale, then the interest of the Company in the Samco
Receivables and the proceeds thereof, will be perfected by virtue of the Samco
Financing Statement having been filed in the office of the Secretary of State of
the State of Texas or (iii) the transfer of the Linc Receivables from Linc to
the Company is a sale, then the interest of the Company in the Linc Receivables
and the proceeds thereof, will be perfected by virtue of the Linc Financing
Statement having been filed in the office of the Secretary of State of the State
of Connecticut.
(y) If a court concludes that (i) the transfer of the CPS Receivables
from CPS to the Company is not a sale, the CPS Purchase Agreement and the
transactions contemplated thereby
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constitute a grant by CPS to the Company of a valid security interest in the CPS
Receivables and the proceeds thereof, which security interest will be a first
priority perfected security interest by virtue of the CPS Financing Statement
having been filed in the office of the Secretary of State of the State of
California, (ii) the transfer of the Samco Receivables from Samco to the Company
is not a sale, the Samco Purchase Agreement and the transactions contemplated
thereby constitute a grant by Samco to the Company of a valid security interest
in the Samco Receivables and the proceeds thereof, which security interest will
be a first priority perfected security interest by virtue of the Samco Financing
Statement having been filed in the office of the Secretary of State of the State
of Texas and (iii) the transfer of the Linc Receivables from Linc to the Company
is not a sale, the Linc Purchase Agreement and the transactions contemplated
thereby constitute a grant by Linc to the Company of a valid security interest
in the Linc Receivables and the proceeds thereof, which security interest will
be a first priority perfected security interest by virtue of the Linc Financing
Statement having been filed in the office of the Secretary of State of the State
of Connecticut. No filing or other action, other than the filing of the
Financing Statements in the offices of the Secretaries of State of the States of
California, Texas and Connecticut referred to above and the execution and
delivery of the Purchase Agreements, is necessary to perfect the interest or the
security interest of the Company in the Receivables and the proceeds thereof
against third parties.
(z) If a court concludes that the transfer of the Receivables from the
Company to the Trust is a sale, then the interest of the Trust in the
Receivables, the other Trust Property and the proceeds thereof, will be a first
priority perfected security interest by virtue of the Company Financing
Statement having been filed in the office of the Secretary of State of the State
of California. If a court concludes that such transfer is not a sale, the Sale
and Servicing Agreement and the transactions contemplated thereby constitute a
grant by the Company to the Trust of a valid security interest in the
Receivables, the other Trust Property and the proceeds thereof, which security
interest will be a first priority perfected security interest by virtue of the
Company Financing Statement having been filed in the office of the Secretary of
State of the State of California. No filing or other action, other than the
filing of the Company Financing Statement in the office of the Secretary of
State of the State of California referred to above and the execution and
delivery of the Sale and Servicing Agreement, is necessary to perfect the
interest or the security interest of the Trust in the Receivables and the
proceeds thereof against third parties.
(aa) The security interest of the Trustee in the Receivables, the other
Trust Property and the proceeds thereof, will be a first priority perfected
security interest by virtue of the Trust Financing Statement having been filed
in the office of the Secretary of State of the State of Delaware. The Indenture
and the transactions contemplated thereby constitute a grant by the Trust to the
Trustee of a valid security interest in the Receivables, the other Trust
Property and the proceeds thereof, which security interest will be a first
priority perfected security interest by virtue of the Trust Financing Statement
having been filed in the office of the Secretary of State of the State of
Delaware. No filing or other action, other than the filing of the Trust
Financing Statement in the office of the Secretary of State of the State of
Delaware referred to above and
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the execution and delivery of the Indenture, is necessary to perfect the
security interest of the Trustee in the Receivables and the proceeds thereof
against third parties.
(bb) None of the Company, CPS, Samco, Linc, the Trustee or the Trust is
required to be registered as an "investment company" under the Investment
Company Act.
(cc) The Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended.
(dd) Except as disclosed in the Final Prospectus, there are no actions,
suits, proceedings or investigations pending or threatened against the Company,
CPS, Samco or Linc before any court, administrative agency or other tribunal
which would have a material adverse effect upon any of the Company, CPS, Samco
or Linc.
(ee) Each of the Company, CPS, Samco and Linc has all licenses, permits
and consents necessary to conduct its business as presently conducted and to
perform its obligations under this Agreement and the Basic Documents and none of
CPS, Samco, Linc or the Company has received notice of any pending or threatened
revocation thereof (except, in any case, to the extent that the failure to have
same is not reasonably likely to have a material adverse effect on the ability
of such party to so conduct its business or to perform its obligations under
this Agreement and the Basic Documents).
2. PURCHASE, SALE AND DELIVERY OF THE NOTES.
Subject to the terms and conditions and in reliance upon the
representations, warranties and covenants herein set forth, the Company agrees
to sell to the Underwriter, and the Underwriter agrees to purchase from the
Company, the initial principal amount of each class of the Notes as set forth in
Schedule I hereto, at the purchase price specified in Schedule I with respect to
each Class of Notes.
The Company will deliver against payment of the purchase price the
Notes in the form of one or more permanent global Notes in definitive form (the
"Global Notes") deposited with the Trustee as custodian for The Depository Trust
Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Interests in any Global Notes will be held only in book-entry form through DTC
except in the limited circumstances described in the Final Prospectus. Payment
for the Notes will be made by the Underwriter by wire transfer of same day funds
to an account previously designated to the Underwriter by the Company at the
offices of [ ], at 9:30 a.m. (New York time) on [ ], or at such other time as is
mutually agreed (such time being herein referred to as the "Closing Date")
against delivery of the Global Notes representing all of the Notes. The Notes
will be made available for inspection at the above office of [ ] at least 24
hours prior to the Closing Date.
-11-
As used herein, "business day" means a day on which the New York Stock
Exchange is open for trading and on which banks in New York, California and
Minnesota are open for business and are not permitted by law or executive order
to be closed.
3. OFFERING BY THE UNDERWRITER.
(a) The Company and CPS are advised by the Underwriter that it proposes
to make a public offering of the Notes, as set forth in the Final Prospectus,
from time to time as and when the Underwriter deems advisable after the
Execution Time. The Company agrees that the Underwriter may, but is not
obligated to, make a market in the Notes and that any such market making by the
Underwriter may be discontinued at any time in the sole discretion of the
Underwriter.
(b) The Underwriter may prepare and provide to prospective investors
certain Computational Materials, ABS Term Sheets or Collateral Term Sheets in
connection with its offering of the Notes, subject to the following conditions:
(i) The Underwriter shall comply with the requirements of the
No-Action Letter of May 20, 1994 issued by the Commission to Xxxxxx,
Peabody Acceptance Corporation I and certain affiliates, as made
applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association dated May
24, 1994 (collectively, the "Xxxxxx/PSA Letter"), and the requirements
of the No-Action Letter of February 17, 1995 issued by the Commission
to the Public Securities Association (the "PSA Letter" and, together
with the Xxxxxx/PSA Letter, the "No-Action Letters").
(ii) For purposes hereof, "Computational Materials" shall have
the meaning given such term in the No-Action Letters, but shall include
only those Computational Materials that have been prepared or delivered
to prospective investors by the Underwriter. For purposes hereof, "ABS
Term Sheets" and "Collateral Term Sheets" shall have the meanings given
such terms in the PSA Letter but shall include only those ABS Term
Sheets or Collateral Term Sheets that have been prepared or delivered
to prospective investors by the Underwriter.
(iii) The Underwriter shall provide to CPS any Computational
Materials, ABS Term Sheets or Collateral Term Sheets which are provided
to investors no later than the second Business Day preceding the date
such Computational Materials, ABS Term Sheets or Collateral Term Sheets
are required to be filed pursuant to the applicable No-Action Letters.
The Underwriter may provide copies of the foregoing in a consolidated
or aggregated form including all information required to be filed.
(iv) In the event that CPS, the Company or the Underwriter
discovers an error in the Computational Materials, ABS Term Sheets or
Collateral Term Sheets, the
-12-
Underwriter shall prepare corrected Computational Materials, ABS Term
Sheets or Collateral Term Sheets and deliver it to CPS for filing
pursuant to Section 4(n).
4. COVENANTS OF THE COMPANY AND CPS.
The Company, and CPS (if so stated), covenants and agrees with the
Underwriter that:
(a) CPS has caused the Registration Statement to become effective and,
as soon as reasonably practicable, shall prepare and timely file with the
Commission under Rule 424(b) a Final Prospectus. Prior to the termination of the
offering of the Notes neither CPS nor the Company will file any amendment of the
Registration Statement or amendment or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any
Rule 462(b) Registration Statement unless CPS or the Company has furnished to
the Underwriter a copy for its review prior to filing and will not file any such
proposed amendment or supplement to which the Underwriter reasonably objects or
which is not in compliance with the 1933 Act Regulations. CPS or the Company
will promptly advise the Underwriter (i) when the Final Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant to Rule
424(b); (ii) when, prior to termination of the offering of the Notes, any
amendment to the Registration Statement shall have been filed or become
effective; (iii) of any request by the Commission for any amendment of the
Registration Statement or supplement to the Final Prospectus or for any other
additional information; (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution of
any proceeding for that purpose; and (v) of the receipt by CPS or the Company of
any notification with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the initiation of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or the suspension of any such qualification and, if issued or
suspended, to obtain as soon as possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, the Company will
submit to the Underwriter, for its approval after reasonable notice thereof,
such approval not to be unreasonably withheld or delayed, a copy of any
post-effective amendment to the Registration Statement, any Rule 462(b)
Registration Statement proposed to be filed or a copy of any document proposed
to be filed under the 1934 Act before the termination of the offering of the
Notes by the Underwriter if such document would be deemed to be incorporated by
reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriter
during the period when delivery of a Final Prospectus is required under the 1933
Act, as many copies of the Final Prospectus, or as thereafter amended or
supplemented, as the Underwriter may reasonably request. The Company will
deliver to the Underwriter at or before the Closing Date such number of copies
of the Registration Statement (including such number of copies of the exhibits
filed therewith that may reasonably be requested), including documents filed
under the 1934 Act and deemed to be incorporated by reference therein, and of
all amendments thereto, as the Underwriter may from time to time reasonably
request.
-13-
(d) The Company will, and will cause the Trust to, comply with the 1933
Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as
to permit the completion of the distribution of the Notes as contemplated in
this Agreement and the Final Prospectus. If during the period in which a
prospectus is required by law to be delivered by the Underwriter or dealer in
connection with the sale of any Notes, any event shall occur as a result of
which, in the judgment of the Company or in the reasonable opinion of the
Underwriter, it becomes necessary to amend or supplement the Final Prospectus in
order to make the statements therein, in the light of the circumstances existing
at the time the Final Prospectus is delivered to a purchaser, not misleading,
or, if it is necessary at any time to amend or supplement the Final Prospectus
to comply with any law or to file under the 1934 Act any document which would be
deemed to be incorporated by reference in the Registration Statement to comply
with the 1933 Act or the 1934 Act, the Company will promptly notify the
Underwriter and will promptly either (i) prepare and file, or cause to be
prepared and filed, with the Commission (at the expense of the Company) an
appropriate amendment to the Registration Statement or supplement to the Final
Prospectus or (ii) prepare and file, or cause to be prepared and filed, with the
Commission (at the expense of the Company) an appropriate filing under the 1934
Act which shall be incorporated by reference in the Final Prospectus so that the
Final Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the Final
Prospectus will comply with applicable law.
(e) The Company will cooperate with the Underwriter in endeavoring to
qualify the Notes for sale under the laws of such jurisdictions as the
Underwriter may designate and will maintain such qualifications in effect so
long as required for the distribution of the Notes, except that the Company will
not be obligated to qualify the Notes in any jurisdiction in which such
qualification would require the Company to qualify to do business as a foreign
corporation, file a general or unlimited consent to service of process or
subject itself to taxation in any such jurisdiction to which it is not subject.
The Company will, from time to time, prepare and file such statements, reports,
and other documents as are or may be required to continue such qualifications in
effect for so long a period as the Underwriter may reasonably request for
distribution of the Notes.
(f) The Company shall not invest, or otherwise use the proceeds
received by the Company from its sale of the Notes in such a manner as would
require the Company, CPS, the Trust or the Trustee to register as an investment
company under the 1940 Act.
(g) Until the retirement of the Notes, or until such time as the
Underwriter shall cease to maintain a secondary market in the Notes, whichever
occurs first, the Company will deliver to the Underwriter the annual statements
of compliance and the annual independent certified public accountant's reports
furnished to the Trustee pursuant to the Sale and Servicing Agreement, as soon
as such statements and reports are furnished to the Trustee.
(h) The Company, CPS, Linc and Samco shall, from the date hereof
through and including the Closing Date, furnish, or cause to be furnished, or
make available, or cause to be made available, to the Underwriter or its counsel
such additional documents and information
-14-
regarding each of them and their respective affairs as the Underwriter may from
time to time reasonably request and which the Company, CPS, Linc or Samco
possesses or can acquire without unreasonable effort or expense, including any
and all documentation requested in connection with the Underwriter's due
diligence efforts regarding information in the Registration Statement and the
Final Prospectus and in order to evidence the accuracy or completeness of any of
the conditions contained in this Agreement; and all actions taken by the Company
or CPS to authorize the sale of the Notes shall be reasonably satisfactory in
form and substance to the Underwriter.
(i) The Company will cause the Trust to make generally available to
Noteholders as soon as practicable, but no later than sixteen months after the
Effective Date, an earnings statement of the Trust covering a period of at least
twelve consecutive months beginning after such Effective Date and satisfying the
provisions of Section 11(a) of the Act (including Rule 158 promulgated
thereunder).
(j) So long as any of the Notes are outstanding, the Company will
furnish to the Underwriter copies of all reports or other communications
(financial or otherwise) furnished or made available to Noteholders, and deliver
to the Underwriter during such period, (i) as soon as they are available, copies
of any reports and financial statements filed by or on behalf of the Trust or
the Company with the Commission pursuant to the 1934 Act and (ii) such
additional information concerning the business and financial condition of the
Company, CPS, Samco and Linc as the Underwriter may from time to time reasonably
request.
(k) On or before the Closing Date, the Company, CPS, Linc and Samco
shall cause their respective computer records relating to the Receivables to be
marked to show the Trust's ownership of, and the Trustee's security interest in,
the Receivables, and from and after the Closing Date none of the Company, CPS,
Linc or Samco shall take any action inconsistent with the Trust's ownership of,
or the Trustee's security interest in, such Receivables, other than as expressly
permitted by the Sale and Servicing Agreement or any other Basic Document.
(l) To the extent, if any, that the ratings provided with respect to
the Notes by either of the Rating Agencies is conditional upon the furnishing of
documents or the taking of any other actions by the Company, CPS, Linc or Samco,
CPS shall, or shall cause the Company, Samco or Linc to, furnish such documents
and take any such other actions.
(m) On the Closing Date, the Company and CPS shall cause the Note
Insurer to issue the Policy to the Trustee for the benefit of the holders of the
Notes in form and substance satisfactory to the Underwriter.
(n) CPS shall file or cause to be filed with the Commission, in
accordance with the No-Action Letters, any Computational Materials, ABS Term
Sheets and Collateral Term Sheets provided that CPS has received such
Computational Materials, ABS Term Sheets and Collateral Term Sheets at least 2
Business Days prior to the time for filing same.
-15-
5. [RESERVED]
6. COSTS AND EXPENSES.
The Company and CPS will pay upon receipt of a written request therefor
all costs, expenses and fees incident to the performance of the obligations of
the Company and CPS under this Agreement and will, jointly and severally,
reimburse the Underwriter for all reasonable out-of-pocket expenses, including
reasonable fees and disbursements of counsel, reasonably incurred in connection
with investigating, marketing and proposing to market the Notes or in
contemplation of performing the Underwriter's obligations hereunder and
including, without limiting the generality of the foregoing, the following: (i)
accounting fees of the Company; (ii) the fees and disbursements of Xxxxx, Xxxxx
& Xxxxx; (iii) the cost of printing and delivering to, or as requested by, the
Underwriter copies of the Registration Statement, the Final Prospectus, this
Agreement, the Basic Documents, the Computational Materials and the listing
application in respect of the Notes; (iv) the filing fees of the Commission; (v)
any fees charged by the Rating Agencies for rating the Notes; (vi) the fees and
expenses of the Trustee, the Owner Trustee, the Collateral Agent and the Lockbox
Processor, including the fees and disbursements of counsel for the Trustee, the
Owner Trustee, the Collateral Agent and the Lockbox Processor, in connection
with the Notes, the Sale and Servicing Agreement and the other Basic Documents
to which any of the foregoing, as applicable, is a party and the expenses,
including the fees and disbursements of counsel for the Underwriter incurred in
qualifying the Notes under State securities or Blue Sky laws; and (vii) the
initial payment of Premium under the Policy. If this Agreement shall not be
consummated because the conditions in Section 7 hereof are not satisfied, or
because this Agreement is terminated by the Underwriter pursuant to Section 12
hereof, or by reason of any failure, refusal or inability on the part of the
Company, CPS, Samco or Linc to perform any undertaking or satisfy any condition
of this Agreement or to comply with any of the terms hereof on its part to be
performed, unless such failure to satisfy said condition or to comply with said
terms shall be due to the default of the Underwriter, then the Company and CPS,
jointly and severally, shall reimburse the Underwriter for reasonable
out-of-pocket expenses, including reasonable fees and disbursements of counsel,
reasonably incurred in connection with investigating, marketing and proposing to
market the Notes or in contemplation of performing their obligations hereunder
upon receipt of a written request therefor; but the Company shall not in any
event be liable to the Underwriter for damages on account of loss of anticipated
profits from the sale of the Notes. Except to the extent expressly set forth in
this Section 6, the Underwriter shall be responsible for its own costs and
expenses, including the fees and expenses of its counsel.
7. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITER.
The obligations of the Underwriter to purchase and pay for the Notes on
the Closing Date are subject to the accuracy in all material respects as of the
Closing Date of the representations and warranties of the Company, CPS, Linc and
Samco contained herein, to the performance by the Company, CPS, Linc and Samco
of their respective covenants and obligations hereunder and to the following
additional conditions precedent:
-16-
(a) The Registration Statement shall be effective. The Final
Prospectus, and any such supplement, shall be filed within the applicable time
period prescribed for such filing by Rule 424(b), and any request of the
Commission for additional information (to be included in the Registration
Statement or otherwise) shall have been disclosed to the Underwriter and
complied with to its reasonable satisfaction. No stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall have been taken or,
to the knowledge of the Company, shall be contemplated by the Commission and no
injunction, restraining order, or order of any nature by a Federal or state
court of competent jurisdiction shall have been issued as of the Closing Date
which would prevent the issuance of the Notes.
(b) The Underwriter shall have received a letter or letters, dated as
of the date of the Computational Materials, as of [ ], and as of the Closing
Date, respectively, of KPMG Peat Marwick LLP, Certified Public Accountants,
substantially in the form of the drafts to which the Underwriter has previously
agreed and otherwise in form and substance satisfactory to the Underwriter and
its counsel.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties or
financial position of the Company, CPS or any Affiliate of the Company or CPS
which, in the judgment of the Underwriter, materially impairs the investment
quality of the Notes or the ability of CPS to act as Servicer or (ii) any
downgrading in the rating of any debt securities or preferred stock of the
Company, CPS or any Affiliate thereof by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Securities Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred stock of
the Company, CPS or any Affiliate thereof (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading of such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of any
securities of the Company or CPS or any Affiliate of the Company or CPS on any
exchange or in the over-the-counter market; (iv) any banking moratorium declared
by Federal, New York or California authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity, emergency or change in financial markets if, in the
judgment of the Underwriter, the effect of any such outbreak, escalation,
declaration, calamity, emergency or change makes it impractical or inadvisable
to market the Notes on the terms and in the manner set forth in the Final
Prospectus.
(d) The Company, CPS, Linc and Samco shall have furnished the
Underwriter with such number of conformed copies of such opinions, certificates,
letters and documents as it may reasonably request.
-17-
(e) On the Closing Date, each of the Basic Documents, the Notes and the
Certificates shall have been duly authorized, executed and delivered by the
parties thereto, shall be in full force and effect and no default shall exist
thereunder, and the Trustee shall have received a fully executed copy thereof
or, with respect to the Notes, a conformed copy thereof. The Basic Documents,
the Notes and the Certificates shall be substantially in the forms heretofore
provided to the Underwriter.
(f) The Underwriter shall have received evidence satisfactory to the
Underwriter that the Class A-1 Notes have been rated [ ] and that the Class A-2
Notes have been rated [ ].
(g) The Underwriter shall have received from Xxxxx, Xxxxx & Xxxxx,
special counsel for CPS, Samco, Linc (with respect to New York law) and the
Company, opinions dated the Closing Date, addressed to the Underwriter, in a
form satisfactory to the Underwriter.
(h) The Underwriter shall have received from Pullman & Xxxxxx LLC,
special Connecticut counsel for Linc, opinions dated the Closing Date, addressed
to the Underwriter in a form satisfactory to the Underwriter.
(i) The Underwriter shall have received from Xxxxx, Xxxxx & Xxxxx,
special Federal tax counsel for the Company, an opinion dated the Closing Date,
addressed to the Underwriter, with respect to the status of the Trust for
federal income tax purposes.
(j) The Underwriter shall have received from Xxxxx, Xxxxx & Xxxxx, an
opinion dated the Closing Date, addressed to the Underwriter, with respect to
the validity of the Notes and such other related matters as the Underwriter
shall require and the Company or CPS shall have furnished or caused to be
furnished to such counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(k) The Underwriter shall have received from counsel to the Trustee,
the Standby Servicer and the Collateral Agent (which counsel shall be reasonably
acceptable to the Underwriter), an opinion addressed to the Underwriter dated
the Closing Date, in form and substance satisfactory to the Underwriter and its
counsel.
(l) The Underwriter shall have received from counsel to the Owner
Trustee, which counsel shall be reasonably acceptable to the Underwriter, an
opinion addressed to the Underwriter, dated the Closing Date, in form and
substance satisfactory to the Underwriter and its counsel.
(m) The Underwriter shall have received from special Delaware counsel
to the Trust, which counsel shall be reasonably acceptable to the Underwriter,
an opinion addressed to the Underwriter, dated the Closing Date, in form and
substance satisfactory to the Underwriter and its counsel.
-18-
(n) The Underwriter shall have received from counsel to the Insurer,
which counsel shall be reasonably acceptable to the Underwriter, an opinion
addressed to the Underwriter, dated the Closing Date, in form and substance
satisfactory to the Underwriter and its counsel.
(o) At the Closing Date, the Underwriter shall have received any and
all opinions of counsel to the Company and CPS supplied to the Rating Agencies
and the Insurer relating to, among other things, the interest of the Trustee in
the Receivables and the other Trust Property and the proceeds thereof and
certain monies due or to become due with respect thereto, certain bankruptcy
issues and certain matters with respect to the Notes. Any such opinions shall be
addressed to the Underwriter or shall indicate that the Underwriter may rely on
such opinions as though they were addressed to the Underwriter, and shall be
dated the Closing Date.
(p) At the Closing Date, the Company, CPS, Linc and Samco shall have
furnished to the Underwriter a certificate, dated the Closing Date, of the
President, the Chief Financial Officer or any Vice President of the Company,
CPS, Linc or Samco, as the case may be, in which each such officer shall state
that: (i) the representations and warranties of the Company, CPS, Linc or Samco,
as applicable, in this Agreement are true and correct on and as of the Closing
Date; (ii) the Company, CPS, Linc or Samco, as applicable, has complied with all
agreements and satisfied all conditions on its part required to be performed or
satisfied hereunder and under each of the other Basic Documents at or prior to
the Closing Date; (iii) the representations and warranties of the Company, CPS,
Linc or Samco, as applicable, in each of the Basic Documents are true and
correct as of the dates specified therein; (iv) with respect to the certificate
delivered by CPS, the Registration Statement has become effective under the 1933
Act and no stop order suspending the effectiveness of the Registration Statement
has been issued, and no proceedings for such purpose have been taken or are, to
his or her knowledge, contemplated by the Commission; (v) with respect to the
certificates delivered by CPS and the Company, he or she has carefully examined
the Registration Statement and the Final Prospectus and, in his or her opinion,
as of the Effective Date of the Registration Statement, the statements contained
in the Registration Statement and the statements contained in the Final
Prospectus were true and correct, and as of the Closing Date the Registration
Statement and the Final Prospectus do not contain any untrue statement of a
material fact or omit to state a material fact with respect to the Company, CPS,
Linc or Samco necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and since the
Effective Date of the Registration Statement, no event has occurred with respect
to the Company, CPS, Linc or Samco which should have been set forth in a
supplement to or an amendment of the Final Prospectus which has not been so set
forth in such supplement or amendment; and (vi) with respect to the certificate
delivered by the Company and CPS, subsequent to the respective dates as of which
information is given in the Registration Statement and the Final Prospectus,
there has been no material adverse change, or any development with respect to
the Company, CPS, Linc or Samco which could reasonably be expected to result in
a material adverse change, in or affecting particularly the business or
properties of the Trust, the Company, CPS, Linc or Samco except as contemplated
by the Final Prospectus or as described in such certificate.
-19-
(q) The Underwriter shall have received evidence satisfactory to the
Underwriter that the Insurer shall have issued the Policy to the Trustee for the
benefit of the Noteholders in form and substance satisfactory to the
Underwriter.
(r) The Underwriter shall have received evidence satisfactory to it
that, on or before the Closing Date, the Financing Statements have been filed in
(i) the office of the Secretary of State of the State of California reflecting
the sale and assignment of the CPS Receivables and the related other Trust
Property and the proceeds thereof to the Company, (ii) the office of the
Secretary of State of the State of Texas reflecting the sale and assignment of
the Samco Receivables and the related other Trust Property and the proceeds
thereof to the Company, (iii) the office of the Secretary of State of the State
of Connecticut reflecting the sale and assignment of the Linc Receivables and
the related other Trust Property and the proceeds thereof to the Company, (iv)
the office of the Secretary of State of California reflecting the sale and
assignment of the Receivables and the related other Trust Property and the
proceeds thereof to the Trust and (v) the office of the Secretary of State of
Delaware reflecting the grant of a security interest by the Trust in the
Receivables and the related other Trust Property and the proceeds thereof to the
Trustee.
(s) All proceedings in connection with the transactions contemplated by
this Agreement, the Sale and Servicing Agreement and each of the other Basic
Documents and all documents incident hereto or thereto shall be satisfactory in
form and substance to the Underwriter.
(t) The Company shall have furnished to the Underwriter such further
certificates and documents confirming the representations and warranties,
covenants and conditions contained herein and related matters as the Underwriter
may reasonably have requested.
(u) The Underwriter shall have received a certificate of the Owner
Trustee regarding the execution of the Notes. The Underwriter shall have
received a certificate of the Trustee regarding the acceptance and
authentication of the Notes.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects reasonably satisfactory to the Underwriter and to counsel for
the Underwriter.
If any of the conditions hereinabove provided for in this Section 7
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriter hereunder may be terminated by the
Underwriter by notifying the Company of such termination in writing or by
telegram at or prior to the Closing Date. In such event, the Company and the
Underwriter shall not be under any obligation to each other (except to the
extent provided in Sections 6 and 9 hereof).
-20-
8. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company to sell and deliver the portion of the
Notes required to be delivered as and when specified in this Agreement are
subject to the condition that, at the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and in effect
or proceedings therefor initiated or threatened.
9. INDEMNIFICATION.
(a) (i) The Company and CPS, jointly and severally, agree to indemnify
and hold harmless the Underwriter, its directors, officers, employees and agents
and each person, if any, who controls the Underwriter within the meaning of the
1933 Act or the 1934 Act, against any losses, claims, damages or liabilities to
which the Underwriter or any such other person may become subject under the 1933
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based upon (A)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Base Prospectus, the Final Prospectus, or any
amendment or supplement thereto (other than information contained therein under
the heading "the Insurer" and information incorporated by reference under such
heading), or (B) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made; and
will reimburse the Underwriter and each such person within 30 days of
presentation of a written request therefor for any legal or other expenses
reasonably incurred by the Underwriter in connection with investigating or
defending any such loss, claim, damage or liability, action or proceeding or in
responding to a subpoena or governmental inquiry related to the offering of the
Notes, whether or not the Underwriter or such person is a party to any action or
proceeding; provided, however, that neither the Company nor CPS will be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement,
or omission or alleged omission made in the Registration Statement, the Base
Prospectus, any Preliminary Final Prospectus, the Final Prospectus or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company or CPS, as the case may be, by the
Underwriter specifically for use therein; provided, further, that neither the
Company nor CPS will be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or alleged omission made in
any Computational Materials, ABS Term Sheets or Collateral Term Sheets, except
to the extent expressly provided in (ii) below. This indemnity agreement will be
in addition to any liability which the Company or CPS may otherwise have. The
indemnity agreement of the Company and CPS in this Agreement is subject to the
condition that, insofar as it relates to any untrue statement, alleged untrue
statement, omission or alleged omission made in the Registration Statement, the
Base Prospectus, any Preliminary Final Prospectus or in the Final Prospectus, or
any amendment or supplement thereto, such indemnity agreement shall not inure to
the benefit of the Underwriter if the Underwriter failed to send or give a copy
of the Final Prospectus (as amended or supplemented, if the Company or CPS, as
the case may be, shall have furnished any amendment or supplement
-21-
thereto to the Underwriter, which corrected such untrue statement or omission
that is the basis of the loss, liability, claim, damage or expense for which
indemnification is sought) to the person asserting any such loss, liability,
claim, damage or expense at such time as the Final Prospectus, as so amended or
supplemented, was required under the 1933 Act to be delivered to such person.
(ii) The Company and CPS, jointly and severally, agree to
indemnify and hold harmless the Underwriter, its directors, officers, employees
and agents and each person, if any, who controls the Underwriter within the
meaning of the 1933 Act or the 1934 Act, to the same extent as the indemnity
from each of the Company and CPS contained in (i) above, against any losses,
claims, damages or liabilities to which such person may become subject under the
1933 Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of or are based upon
(A) any untrue statement or alleged untrue statement of any material fact
contained in the Computational Materials, any ABS Term Sheet or any Collateral
Term Sheet provided by the Underwriter or (B) the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances in
which they were made, not misleading (in each case, to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission
results from the failure of the Company Provided Information to be accurate in
all material respects); and will reimburse each such party within 30 days of
written request therefor for any legal or other expenses reasonably incurred by
such person in connection with investigating or defending any such loss, claim,
damage or liability, action or proceeding or in responding to a subpoena or
governmental inquiry related thereto, whether or not such person is a party to
any action or proceeding. The obligations of each of the Company and CPS under
this subsection (ii) shall be in addition to any other liability which such
party may otherwise have. "Company Provided Information" means the information
contained in the data tape delivered by CPS to the Underwriter on or about [ ]
containing information with respect to the Receivables as of the Cutoff Date.
(b) (i) The Underwriter will indemnify and hold harmless each of CPS,
Samco, Linc and the Company, each of their directors, officers, employees and
agents and each person, if any, who controls CPS, Samco, Linc or the Company
within the meaning of the 1933 Act or the 1934 Act, to the same extent as the
foregoing indemnity from each of the Company and CPS to the Underwriter, its
directors, officers, employees and agents and each person who controls the
Underwriter, but only with respect to untrue statements or omissions or alleged
untrue statements or omissions made in the Registration Statement, the Base
Prospectus, any Preliminary Final Prospectus, the Final Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company or CPS, as the case may be, by the
Underwriter specifically for use therein. This indemnity agreement will be in
addition to any liability which the Underwriter may otherwise have. CPS, Samco,
Linc, the Company and the Underwriter acknowledge and agree that the only
information furnished or to be furnished by the Underwriter to the Company or
CPS for inclusion in the Registration Statement, the Base Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, or any amendments or
supplements thereto, consists of the information set forth in [the first
sentence of the fourth
-22-
paragraph on the front cover page and in the last paragraph on the front cover
page of the Final Prospectus concerning the terms of the offering by the
Underwriter (insofar as such information relates to the Underwriter), and the
information in the first and second sentences of the third paragraph under the
caption "Underwriting" in the Final Prospectus and in the second sentence of the
fourth paragraph under the caption "Underwriting" in the Final Prospectus.]
(ii) The Underwriter agrees to indemnify and hold harmless the
Company, CPS, Samco, Linc, the respective officers, directors, employees and
agents of any such party, and each person who controls the Company, CPS, Samco
or Linc within the meaning of the 1933 Act or the 1934 Act against any losses,
claims, damages or liabilities to which such person may become subject under the
1933 Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of or are based upon
(A) any untrue statement or alleged untrue statement of any material fact
contained in the Computational Materials, any ABS Term Sheet or any Collateral
Term Sheet distributed by the Underwriter or (B) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances in which they were made (except, in each case, to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission results from the failure of the Company Provided Information to be
accurate in all material respects); and will reimburse each such party within 30
days of written request therefor for any legal or other expenses reasonably
incurred by such person in connection with investigating or defending any such
loss, claim, damage or liability, action or proceeding or in responding to a
subpoena or governmental inquiry related thereto, whether or not such person is
a party to any action or proceeding. The obligations of the Underwriter under
this subsection (ii) shall be in addition to any other liability which the
Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 9, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. The failure to give such notice shall not
relieve the indemnifying party or parties from any liability which it or they
may have to the indemnified party for indemnity or contribution or otherwise
than on account of the provisions of Section 9(a) or (b), except and only to the
extent such omission so to notify shall have materially prejudiced the
indemnifying party under Section 9(a) or (b). In case any such proceeding shall
be brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay as incurred (or within 30 days of presentation of an invoice)
the fees and expenses of the counsel retained by the indemnified party in the
event (i) the indemnifying party and the indemnified
-23-
party shall have mutually agreed to the retention of such counsel, (ii) the
indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(iii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iv) the indemnifying party shall
have failed to assume the defense and employ counsel acceptable to the
indemnified party within a reasonable period of time after notice of
commencement of the action. It is understood that the indemnifying party shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated in
writing by the Underwriter in the case of parties indemnified pursuant to
Section 9(a) and by the Company in the case of parties indemnified pursuant to
Section 9(b). The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled with such
consent or if there is a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. In addition, the
indemnifying party will not, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld or delayed),
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding for which indemnification may be sought
hereunder (whether or not any indemnified party is an actual or potential party
to such claim, action or proceeding) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action or proceeding.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 9(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company, CPS,
Samco and Linc on the one hand and the Underwriter on the other hand from the
offering of the Notes. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company, CPS, Samco or Linc on the one hand
and the Underwriter on the other hand in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company, CPS,
Samco and Linc on the one hand and the Underwriter on the other hand shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriter (in each case
as set forth on the cover page of the Final Prospectus). The relative fault
shall be determined by
-24-
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, CPS, Samco or Linc on the one
hand or the Underwriter on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, CPS, Samco, Linc and the Underwriter agree that it would
not be just and equitable if contributions pursuant to this Section 9(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 9(d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this Section 9(d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim, subject to
the limitations set forth above. Notwithstanding the provisions of this Section
9(d), (i) the Underwriter shall not be required to contribute any amount in
excess of the underwriting discounts and commissions applicable to the Notes
purchased by the Underwriter and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) In any proceeding relating to the Registration Statement, the Base
Prospectus, any Preliminary Final Prospectus, the Final Prospectus, or any
supplement or amendment thereto, each party against whom contribution may be
sought under this Section 9 hereby consents to the jurisdiction of any court
having jurisdiction over any other contributing party, agrees that process
issuing from such court may be served upon it by any other contributing party
and consents to the service of such process and agrees that any other
contributing party may join it as an additional defendant in any such proceeding
in which such other contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
obligations of the Company and CPS pursuant to Section 6, the indemnity and
contribution agreements contained in this Section 9 and the representations and
warranties of each of the Company, CPS, Samco and Linc set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of the Underwriter, the Company, CPS,
Samco, Linc, their respective directors, officers, employees or agents or any
persons controlling the Underwriter, CPS, Samco, Linc or the Company, (ii)
acceptance of any Notes and payment thereof or hereunder, and (iii) any
termination of this Agreement. A successor to the Underwriter, the Company,
Samco, Linc or CPS, their respective directors, officers, employees or agents,
or any person controlling the Underwriter, the Company, Samco, Linc or CPS,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 9.
-25-
10. [RESERVED]
11. NOTICES.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or telegraphed
and confirmed as follows:
if to the Underwriter, to the following address:
[ ]
if to the Company, at the following address:
CPS Receivables Corp.
0 Xxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Xx.
Facsimile No.: (000) 000-0000;
-26-
if to CPS, at the following address:
Consumer Portfolio Services, Inc.
0 Xxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Xx.
Facsimile No.: (000) 000-0000
if to Samco, at the following address:
Samco Acceptance Corp.
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Lock-Box 39
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Louis
Facsimile No.: (000) 000-0000
if to Linc, at the following address:
Linc Acceptance Company LLC
Xxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxx Xxxxxxx
Facsimile No.: (000) 000-0000
12. TERMINATION.
This Agreement may be terminated by the Underwriter by notice to the
Company as follows:
(a) at any time prior to the Closing Date, if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, any material adverse change or
any development involving a prospective material adverse change in the business,
properties, results of operations, financial condition or business prospects of
CPS, Samco, Linc or the Company, whether or not arising in the ordinary course
of business, (ii) any outbreak or escalation of hostilities or declaration of
war or national emergency or other national or international calamity or crisis
or change in economic or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change on the financial
markets of the United States would, in the Underwriter's reasonable judgment,
make it impracticable to market the Notes or to enforce contracts for the sale
of the Notes, (iii) any suspension of trading in securities generally on the New
York Stock Exchange or
-27-
the American Stock Exchange or limitation on prices (other than limitations on
hours or numbers of days of trading) for securities on either such Exchange,
(iv) the enactment, publication, decree or other promulgation of any statute,
regulation, rule or order of any court or other governmental authority which in
the Underwriter's reasonable opinion materially and adversely affects or may
materially and adversely affect the business or operations of the Company or
CPS, (v) declaration of a banking moratorium by United States or New York State
authorities, (vi) any downgrading or the giving of notice of any intended or
potential downgrading in the rating of the Company's or CPS's debt securities by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the 1934 Act), (vii) the suspension of trading of
the Common Stock by the Commission on the New York Stock Exchange or (viii) the
taking of any action by any governmental body or agency in respect of its
monetary or fiscal affairs which in the Underwriter's reasonable opinion has a
material adverse effect on the securities markets in the United States; or
(b) as provided in Section 7 of this Agreement.
13. SUCCESSORS.
This Agreement has been and is made solely for the benefit of the
Underwriter, CPS, Samco, Linc and the Company and their respective successors,
executors, administrators, heirs and assigns, and the respective affiliates,
officers, directors, employees, agents and controlling persons referred to
herein, and no other person will have any right or obligation hereunder. No
purchaser of any of the Notes from the Underwriter shall be deemed a successor
or assign merely because of such purchase.
14. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement, the obligations of the Company and CPS under
Section 6 and the representations, warranties and covenants in this Agreement
shall remain in full force and effect regardless of (a) any termination of this
Agreement, (b) any investigation made by or on behalf of the Underwriter, the
Company or CPS, their respective directors, officers, employees or agents or any
controlling person of the Underwriter, the Company or CPS indemnified herein and
(c) delivery of and payment for the Notes under this Agreement.
The Underwriter agrees that, prior to the date which is one year and
one day after the payment in full of all securities issued by the Company or by
a trust for which the Company was the depositor, which securities were rated by
any nationally recognized statistical rating organization, it will not institute
against, or join any other person in instituting against, the Company any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any Federal or state bankruptcy or similar law.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
-28-
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York without regard to the conflict of laws
provisions thereof. With respect to any claim arising out of this Agreement (i)
each party irrevocably submits to the exclusive jurisdiction of the courts of
the State of New York and the United States District Court for the Southern
District of New York, and (ii) each party irrevocably waives (1) any objection
which it may have at any time to the laying of venue of any suit, action or
proceeding arising out of or relating hereto brought in any such court, (2) any
claim that any such suit, action or proceeding brought in any such court has
been brought in any inconvenient forum and (3) the right to object, with respect
to such claim, suit, action or proceeding brought in any such court, that such
court does not have jurisdiction over such party. To the extent permitted by
applicable law, the Underwriter, the Company, Samco, Linc and CPS irrevocably
waive all right of trial by jury in any action, proceeding or counterclaim
arising out of or in connection with this Agreement or any matter arising
hereunder.
This Agreement supersedes all prior agreements and understandings
relating to the subject matter hereof.
Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought.
The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof.
Any provision of this Agreement which is prohibited, unenforceable or
not authorized in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, unenforceability or
non-authorization without invalidating the remaining provisions hereof or
affecting the validity, enforceability or legality of such provision in any
other jurisdiction.
[Rest of page intentionally left blank.]
-29-
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, CPS, Samco, Linc
and the Underwriter in accordance with its terms.
Very truly yours,
CPS RECEIVABLES CORP.
By:
Title:
CONSUMER PORTFOLIO SERVICES, INC.
By:
Title:
SAMCO ACCEPTANCE CORP.
By:
Title:
LINC ACCEPTANCE COMPANY LLC
By:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
[UNDERWRITER]
By:
Title:
SCHEDULE I
Principal Amount Purchase
Class to be Purchased Price
----- --------------- -----
Total
