Exhibit 10.2
Receivables Purchase Agreement
EXECUTION COPY
PURCHASE AGREEMENT dated as of this December 1, 1996, by and between
CONSUMER PORTFOLIO SERVICES, INC., a California corporation (the "Seller"),
having its principal executive office at 0 Xxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx
00000, and CPS RECEIVABLES CORP., 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, which Receivables will be transferred by the Purchaser,
pursuant to the Pooling and Servicing Agreement (as hereinafter defined) to CPS
Auto Grantor Trust 1996-3 to be created thereunder, which Trust will issue
certificates representing beneficial ownership interests in the Receivables and
the other property of the Trust (the "Class A Certificates" and the "Class B
Certificates", together, the "Certificates").
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 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 December 19, 1996, 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.
"Base Prospectus" means the Prospectus dated December 17, 1996 with respect
to CPS Auto Grantor Trusts and any amendment or supplement thereto.
"Obligor(s)" means the purchaser or co-purchasers of a Financed Vehicle or
any other Person who owes or may be liable for payments under a Receivable.
"Offering Documents" means the Prospectus Supplement, the Base Prospectus
and the Private Placement Memorandum.
"Pooling and Servicing Agreement" means the Pooling and Servicing Agreement
dated as of December 1, 1996, 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.
"Private Placement Memorandum" means the Private Placement Memorandum,
dated December 17, 1996, relating to the private placement of the Class B
Certificates and any amendment or supplement thereto.
"Prospectus Supplement" means the Prospectus Supplement dated December 17,
1996, relating to the public offering of the Class A Certificates and any
amendment or supplement thereto.
"Purchaser" means CPS Receivables Corp., a California corporation, and its
successors and assigns.
"Receivable" means each retail installment sale contract for a Financed
Vehicle that appears on the Schedule of Receivables and all rights thereunder.
"Receivables Purchase Price" means $92,857,811.12.
"Repurchase Event" shall have the meaning specified in Section 6.2 hereof.
"Schedule of Receivables" means the list of Receivables annexed hereto as
Exhibit B.
"Seller" means Consumer Portfolio Services, Inc., a California corporation,
in its capacity as seller of the Receivables and the other Transferred Property
relating thereto, and its successors and assigns.
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"Servicer" means Consumer Portfolio Services, Inc., a California
corporation, in its capacity as Servicer of the Receivables, and its successors
and assigns.
"Transferred Property" shall have the meaning specified in Section 2.1(a)
hereof.
"Trust" means the CPS Auto Grantor Trust 1996-3 created by the Pooling and
Servicing Agreement.
"UCC" means the Uniform Commercial Code, as in effect from time to time in
the relevant jurisdictions.
"Underwriter" means Greenwich Capital Markets, Inc.
"Underwriting Agreement" means, collectively, (a) the Underwriting
Agreement, dated December 17, 1996, between the Underwriter, CPS and the
Purchaser relating to the Class A Certificates and (b) the Certificate Purchase
Agreement, dated December 17, 1996 between the Underwriter, CPS and the
Purchaser relating to the Class B Certificates.
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 and the Pooling and
Servicing 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 property of the Purchaser shall
not be part of the Seller's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law.
(a) Transfer of Receivables. On the Closing Date and simultaneously with
the transactions to be consummated pursuant to the Pooling and Servicing
Agreement, the Seller shall sell, transfer, assign, grant, set over and
otherwise convey to the Purchaser, without recourse (subject to the obligations
herein and in the Pooling and Servicing Agreement), 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
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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. An amount
equal to $89,607,787.73 of the Receivables Purchase Price shall be paid to the
Seller in cash. The remaining $3,250,023.39 of the Receivables Purchase Price
shall be deemed paid and returned to the Purchaser and be considered a
contribution to capital. The portion of the Receivables Purchase Price to be
paid in cash shall be by federal wire transfer (same day) funds.
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, simultaneously
with the closings under: (a) the Pooling and Servicing Agreement pursuant to
which (i) the Purchaser will assign all of its right, title and interest in and
to the Receivables and the other Transferred Property to the Trustee for the
benefit of the Certificateholders and (ii) the Trust will issue and deliver to
the Purchaser in exchange for the Transferred Property and related transferred
property the Certificates and (b) the Underwriting Agreements pursuant to which
the Purchaser shall sell the Class A Certificates to the Underwriter and the
Class B Certificates to one or more investors.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of the Purchaser. The Purchaser hereby
represents and warrants to the Seller as of the date hereof and as of the
Closing Date:
(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, 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.
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(f) No Proceedings. There are no proceedings or investigations pending, or
to the Purchaser's best knowledge, threatened, before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Purchaser or its properties: (A) asserting the invalidity
of this Agreement or the Certificates; (B) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions contemplated by
this Agreement; (C) seeking any determination or ruling that might materially
and adversely affect the performance by the Purchaser of its obligations under,
or the validity or enforceability of, this Agreement or the Certificates; or (D)
relating to Purchaser and which might adversely affect the Federal or State
income, excise, franchise or similar tax attributes of the Certificates.
(g) No Consents. No consent, approval, authorization or order of or
declaration or filing with any governmental authority is required to be obtained
by the Purchaser for the issuance or sale of the Certificates or the
consummation of the other transactions contemplated by this Agreement or the
Pooling and Servicing Agreement, except such as have been duly made or obtained.
3.2. Representations and Warranties of the Seller. (a) The Seller hereby
represents and warrants to the Purchaser as of the date hereof and as of the
Closing Date:
(i) Organization and Good Standing. The Seller has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of California, with power and authority to own its properties and
to conduct its business as such properties shall be currently owned and
such business is presently conducted and had at all relevant times, and
shall have, power, authority and legal right to acquire, own and service
the Receivables.
(ii) Due Qualification. The Seller is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease
of property or the conduct of its business (including the origination and
the servicing of the Receivables as required by the Pooling and Servicing
Agreement) shall require such qualifications.
(iii) Power and Authority. The Seller has the power and authority to
execute and deliver this Agreement and to carry out its terms; the Seller
has full power and authority to sell and assign the property sold and
assigned to the Purchaser and has duly authorized such sale and assignment
to the Purchaser by all necessary corporate
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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
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation, as amended, or by-laws of the Seller, or any
indenture, agreement, mortgage, deed of trust, or other instrument to which
the Seller is a party or by which it is bound or to which any of its
properties are subject; nor result in the creation or imposition of any
lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust, or other instrument (other
than this Agreement and the Pooling and Servicing Agreement); nor violate
any law, order, rule or regulation applicable to the Seller of any court or
of any Federal or State regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or its
properties.
(vi) No Proceedings. There are no proceedings or investigations
pending, or to the Seller's best knowledge, threatened, before any court,
regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or its properties: (A)
asserting the invalidity of this Agreement or the Certificates; (B) seeking
to prevent the issuance of the Certificates or the consummation of any of
the transactions contemplated by this Agreement; (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement or the Certificates; or (D) relating to
the Seller and which might adversely affect the Federal or State income,
excise, franchise or similar tax attributes of the Certificates.
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(vii) No Consents. No consent, approval, authorization or order of or
declaration or filing with any governmental authority is required for the
issuance or sale of the Certificates or the consummation of the other
transactions contemplated by this Agreement or the Pooling and Servicing
Agreement, except such as have been duly made or obtained.
(viii) Financial Condition. The Seller has a positive net worth and is
able to and does pay its liabilities as they mature. The Seller is not in
default under any obligation to pay money to any Person except for matters
being disputed in good faith which do not involve an obligation of the
Seller on a promissory note. The Seller will not use the proceeds from the
transactions contemplated by this Agreement to give any preference to any
creditor or class of creditors, and this transaction will not leave the
Seller with remaining assets which are unreasonably small compared to its
ongoing operations.
(ix) 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 execution
and delivery of this Agreement, but shall survive the sale, transfer, and
assignment of the Receivables and the other Transferred Property relating
thereto to the Purchaser and the subsequent assignment and transfer pursuant to
the Pooling and Servicing Agreement:
(i) Origination Date. Each Receivable has an origination date on or
after March 9, 1995.
(ii) Principal Balance/Number of Contracts. As of the Cutoff Date, the
total aggregate principal balance of the Receivables was $92,857,811.12.
The Receivables are evidenced by 7,403 Contracts.
(iii) Maturity of Receivables. Each Receivable has an original term to
maturity of not less than 18 months and not more than 60 months; the
weighted average original term to maturity of the Receivables is 56.03
months as of the Cutoff Date; the remaining term to maturity of each
Receivable was 60 months or less as of the Cutoff Date; the
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weighted average remaining term to maturity of the Receivables was 54.75
months as of the Cutoff Date.
(iv) Characteristics of Receivables. (a) Each Receivable (1) has been
originated in the United States of America by a Dealer for the retail sale
of a Financed Vehicle in the ordinary course of such Dealer's business, has
been fully and properly executed by the parties thereto and has been
purchased by the Seller in connection with the sale of Financed Vehicles by
the Dealers, (2) has created a valid, subsisting, and enforceable first
priority security interest in favor of the Seller in the Financed Vehicle,
which security interest has been assigned by the Seller to the Purchaser,
which in turn has assigned such security interest to the Trustee pursuant
to the Pooling and Servicing Agreement, (3) contains customary and
enforceable provisions such that the rights and remedies of the holder or
assignee thereof shall be adequate for realization against the collateral
of the benefits of the security, (4) provides for level monthly payments
that fully amortize the Amount Financed over the original term (except for
the last payment, which may be different from the level payment) and yield
interest at the Annual Percentage Rate, (5) has an Annual Percentage Rate
of not less than 16.50%, (6) that is a Rule of 78's Receivable provides
for, in the event that such Receivable is prepaid, a prepayment that fully
pays the Principal Balance and includes a full month's interest, in the
month of prepayment, at the Annual Percentage Rate, (7) is a Rule of 78's
Receivable or a Simple Interest Receivable, and (8) was originated by a
Dealer and was sold by the Dealer without any fraud or misrepresentation on
the part of such Dealer.
(b) Approximately 87.27% of the aggregate Principal Balance of the
Receivables, constituting 90.25% of the number of Receivables, as of the Cutoff
Date, represents financing of used automobiles, light trucks, vans or minivans;
the remainder of the Receivables represent financing of new automobiles, light
trucks, vans or minivans; approximately 24.76% of the aggregate Principal
Balance of the Receivables as of the Cutoff Date were originated in the State of
California; approximately 54.07% of the aggregate Principal Balance of the
Receivables as of the Cutoff Date were originated under the CPS alpha program;
approximately 10.38% of the aggregate Principal Balance of the Receivables as of
the Cutoff Date were originated under the CPS delta program; approximately 4.87%
of the aggregate Principal Balance of the Receivables as of the Cutoff Date were
originated under the CPS first time buyer program; and the remaining 30.53% of
the Receivables were originated under the CPS standard program; approximately
0.15% of the
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Receivables were acquired by CPS from another party; no Receivable shall have a
payment that is more than 30 days overdue as of the Cutoff Date; 43.22% of the
Receivables are Rule of 78's Receivables and 56.78% of the Receivables are
Simple Interest Receivables; each Receivable shall have a final scheduled
payment due no later than January 14, 2002; each Receivable has an original term
to maturity of at least 18 months and not more than 60 months and a remaining
term to maturity of not less than 16 months nor greater than 60 months; and each
Receivable was originated on or before the Cutoff Date.
(v) Scheduled Payments. Each Receivable had an original principal
balance of not less than $2,288 nor more than $29,000.36, has an
outstanding principal balance as of the Cutoff Date of not less than
$2,052.61 and not more than $28,897.29 and has a first Scheduled Payment
due on or prior to February 21, 1997.
(vi) Characteristics of Obligors. As of the date of each Obligor's
application for the loan from which the related Receivable arises, each
Obligor on any Receivable (a) did not have any material past due credit
obligations or any personal or real property repossessed or wages garnished
within one year prior to the date of such application, unless such amounts
have been repaid or discharged through bankruptcy, (b) was not the subject
of any Federal, State or other bankruptcy, insolvency or similar proceeding
pending on the date of application that is not discharged, (c) had not been
the subject of more than one Federal, State or other bankruptcy, insolvency
or similar proceeding, and (d) was domiciled in the United States.
(vii) Origination of Receivables. Based on the billing address of the
Obligors and the Principal Balances as of the Cutoff Date, approximately
24.76% of the Receivables were originated in California, approximately
9.36% of the Receivables were originated in Pennsylvania, approximately
7.95% of the Receivables were originated in Texas, 7.73% were originated in
Florida and the remaining 50.20% of the Receivables were originated in all
other States.
(viii) Post-Office Box. On or prior to the next billing period after
the Cutoff Date, the Seller will notify each Obligor to make payments with
respect to its respective Receivables after the Cutoff Date directly to the
Post-Office Box, and will provide each Obligor with a monthly statement in
order to enable such Obligors to make payments directly to the Post-Office
Box.
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(ix) Location of Receivable Files. A complete Receivable File with
respect to each Receivable has been or prior to the Closing Date will be
delivered to the Trustee at the location listed in Schedule B to the
Pooling and Servicing Agreement.
(x) Schedule of Receivables; Selection Procedures. The information
with respect to the Receivables set forth in the Schedule of Receivables is
true and correct in all material respects as of the close of business on
the Cutoff Date, and no selection procedures adverse to the
Certificateholders have been utilized in selecting the Receivables.
(xi) Compliance with Law. Each Receivable, the sale of the Financed
Vehicle and the sale of any physical damage, credit life and credit
accident and health insurance and any extended service contracts complied
at the time the related Receivable was originated or made and at the
execution of this Agreement complies in all material respects with all
requirements of applicable Federal, State and local laws, and regulations
thereunder including, without limitation, usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's
Regulations B and Z, the Soldiers' and Sailors' Civil Relief Act of 1940,
the Texas Consumer Credit Code, the California Automobile Sales Finance
Act, and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code, and other consumer credit laws and equal credit
opportunity and disclosure laws.
(xii) Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance with its terms.
(xiii) No Government Obligor. None of the Receivables are due from the
United States of America or any State or from any agency, department, or
instrumentality of the United States of America or any State.
(xiv) Security Interest in Financed Vehicle. Immediately prior to the
sale, assignment, and transfer thereof, each Receivable shall be secured by
a validly perfected first security interest in the Financed Vehicle in
favor of the Seller as secured party, and such security interest is prior
to all other liens upon and security interests in such Financed Vehicle
which now exist or may
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hereafter arise or be created (except, as to priority, for any tax liens or
mechanics' liens which may arise after the Closing Date).
(xv) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released from
the lien granted by the related Receivable in whole or in part.
(xvi) No Waiver. No provision of a Receivable has been waived.
(xvii) No Amendments. No Receivable has been amended, except as such
Receivable may have been amended to grant extensions which shall not have
numbered more than (a) one extension of one calendar month in any calendar
year or (b) three such extensions in the aggregate.
(xviii) No Defenses. As of the Closing Date, no right of rescission,
setoff, counterclaim or defense exists or has been asserted or threatened
with respect to any Receivable. The operation of the terms of any
Receivable or the exercise of any right thereunder will not render such
Receivable unenforceable in whole or in part or subject to any such right
of rescission, setoff, counterclaim, or defense.
(xix) No Liens. As of the Cutoff Date, there are no liens or claims
existing or which have been filed for work, labor, storage or materials
relating to a Financed Vehicle that shall be liens prior to, or equal or
coordinate with, the security interest in the Financed Vehicle granted by
the Receivable.
(xx) No Default; Repossession. Except for payment delinquencies
continuing for a period of not more than thirty days as of the Cutoff Date,
no default, breach, violation or event permitting acceleration under the
terms of any Receivable has occurred; and no continuing condition that with
notice or the lapse of time would constitute a default, breach, violation,
or event permitting acceleration under the terms of any Receivable has
arisen; and the Seller shall not waive and has not waived any of the
foregoing; and no Financed Vehicle shall have been repossessed as of the
Cutoff Date.
(xxi) Insurance; Other. (A) Each Obligor has obtained insurance
covering the Financed Vehicle as of the execution of the Receivable
insuring against loss and damage due to fire, theft, transportation,
collision and other risks generally covered by comprehensive and collision
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coverage and that each Receivable requires the Obligor to obtain and
maintain such insurance naming the Seller and its successors and assigns as
an additional insured, (B) each Receivable that finances the cost of
premiums for credit life and credit accident or health insurance is covered
by an insurance policy and certificate of insurance naming the Seller as
policyholder (creditor) under each such insurance policy and certificate of
insurance and (C) as to each Receivable that finances the cost of an
extended service contract, the respective Financed Vehicle which secures
the Receivable is covered by an extended service contract.
(xxii) 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 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.
(xxiii) Lawful Assignment. No Receivable has been originated in, or is
subject to the laws of, any jurisdiction under which the sale, transfer,
and assignment of such Receivable under this Agreement shall be unlawful,
void, or voidable. The Seller has not entered into any agreement with any
account debtor that prohibits, restricts or conditions the assignment of
any portion of the Receivables.
(xxiv) All Filings Made. All filings (including, without limitation,
UCC filings) necessary in any jurisdiction to give the Purchaser a first
priority perfected ownership interest in the Receivables have been made.
(xxv) Receivable File; One Original. The Seller has delivered to the
Trustee a complete Receivable File with
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respect to each Receivable. There is only one original executed copy of
each Receivable.
(xxvi) Chattel Paper. Each Receivable constitutes "chattel paper"
under the applicable UCC.
(xxvii) Valid and Binding Obligation of Obligor. Each Receivable is
the legal, valid and binding obligation of the Obligor thereunder and is
enforceable in accordance with its terms, except only as such enforcement
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally, and all parties to such
contract had full legal capacity to execute and deliver such contract and
all other documents related thereto and to grant the security interest
purported to be granted thereby.
(xxviii) Tax Liens. As of the Cutoff Date, there is no lien against
the related Financed Vehicle for delinquent taxes.
(xxix) Title Documents. (A) If the Receivable was originated in a
State in which notation of security interest on the title document of the
related Financed Vehicle is required or permitted to perfect such security
interest, the title document for such Receivable shows, or if a new or
replacement title document is being applied for with respect to such
Financed Vehicle the title document (or, with respect to Receivables
originated in the State of Michigan, all other evidence of ownership with
respect to such Financed Vehicle) will be received within 180 days and will
show, the Seller named as the original secured party under the related
Receivable as the holder of a first priority security interest in such
Financed Vehicle, and (B) if the Receivable was originated in a State in
which the filing of a financing statement under the UCC is required to
perfect a security interest in motor vehicles, such filings or recordings
have been duly made and show the Seller named as the original secured party
under the related Receivable, and in either case, the Trustee has the same
rights as such secured party has or would have (if such secured party were
still the owner of the Receivable) against all parties claiming an interest
in such Financed Vehicle. With respect to each Receivable for which the
title document of the related Financed Vehicle has not yet been returned
from the Registrar of Titles, the Seller has received written evidence from
the related Dealer that such title document showing the Seller as first
lienholder has been applied for.
(xxx) Casualty. No Financed Vehicle related to a Receivable has
suffered a Casualty.
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(xxxi) Obligation to Dealers or Others. The Purchaser and its
assignees will assume no obligation to Dealers or other originators or
holders of the Receivables (including, but not limited to under dealer
reserves) as a result of the purchase of the Receivables.
(xxxii) Full Amount Advanced. The full amount of each Receivable has
been advanced to each Obligor, and there are no requirements for future
advances thereunder. The Obligor with respect to the Receivable does not
have any option under the Receivable to borrow from any Person additional
funds secured by the Financed Vehicle.
(c) The representations and warranties contained in this Agreement shall
not be construed as a warranty or guaranty by the Seller as to the future
payments by any Obligor. The sale of the Receivables pursuant to this Agreement
shall be "without recourse" except for the representations, warranties and
covenants made by the Seller in this Agreement or the Pooling and Servicing
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 with the
same effect as if then made, and the Seller shall have performed all obligations
to be performed by it hereunder on or prior to the Closing Date.
(b) 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, at its own expense,
deliver the Receivable Files to the Trustee at the offices specified in Schedule
B to the Pooling and Servicing Agreement on or prior to the Closing Date.
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(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) Evidence of UCC-1 Filing. On or prior to the Closing Date, the
Seller shall record and file, at its own expense, a UCC-1 financing
statement in each jurisdiction in which required by applicable law,
executed by the Seller, as seller or debtor, and naming the Purchaser, as
purchaser or secured party, naming the Receivables and the other
Transferred Property conveyed hereafter as collateral, meeting the
requirements of the laws of each such jurisdiction and in such manner as is
necessary to perfect the sale, transfer, assignment and conveyance of such
Receivables to the Purchaser. The Seller shall deliver a file-stamped copy,
or other evidence satisfactory to the Purchaser of such filing, to the
Purchaser on or prior to the Closing Date.
(iii) Evidence of UCC-2 Filing. On or prior to the Closing Date, the
Seller shall cause to be recorded and filed, at its own expense, a UCC-2
termination statement executed by General Electric Capital Corporation
("GECC") in each jurisdiction in which required by applicable law, meeting
the requirements of the laws of each such jurisdiction and in such manner
as is necessary to release GECC's interest in the Receivables, including
without limitation, the security interests in the Financed Vehicles
securing the Receivables and any proceeds of such security interests or the
Receivables. The Seller shall deliver a file-stamped copy, or other
evidence satisfactory to the Purchaser of such filing, to the Purchaser on
or prior to the Closing Date.
(iv) Other Documents. On or prior to the Closing Date, the Seller
shall deliver such other documents as the Purchaser may reasonably request.
(e) Other Transactions. The transactions contemplated by the Pooling and
Servicing Agreement and the Underwriting Agreements shall be consummated on the
Closing Date.
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:
(a) Representations and Warranties True. The representations and warranties
of the Purchaser hereunder shall
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be true and correct on the Closing Date with the same effect as if then made,
and the Seller shall have performed all obligations to be performed by it
hereunder on or prior to the Closing Date.
(b) Receivables Purchase Price. At the Closing Date, the Purchaser will
deliver to the Seller the Receivables Purchase Price as provided in Section
2.1(b). The Seller hereby directs the Purchaser to wire $89,607,787.73 of the
Receivables Purchase Price to Bank of America, ABA: 000000000, Account
#1458425131, Consumer Portfolio Services, Inc. pursuant to wire instructions to
be delivered to the Purchaser on or prior to the Closing Date.
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows; 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) Filings. The Seller shall cause all financing statements and
continuation statements and any other necessary documents covering the right,
title and interest of the Purchaser in and to the Receivables and the other
Transferred Property to be promptly filed, and at all times to be kept recorded,
registered and filed, all in such manner and in such places as may be required
by law fully to preserve and protect the right, title and interest of the
Purchaser hereunder to the Receivables and the other Transferred Property. The
Seller shall deliver to the Purchaser file stamped copies of, or filing receipts
for, any document recorded, registered or filed as provided above, as soon as
available following such recordation, registration or filing. The Purchaser
shall cooperate fully with the Seller in connection with the obligations set
forth above and will execute any and all documents reasonably required to
fulfill the intent of this Section 5.1(a). In the event the Seller fails to
perform its obligations under this subsection, the Purchaser or the Trustee may
do so at the expense of the Seller.
(b) Name and Other Changes. At least 60 days prior to the date the Seller
makes any change in its name, identity or corporate structure which would make
any financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the applicable provisions of the
UCC or any title statute, the Seller shall give the Trustee, the Certificate
Insurer (so long as an Insurer Default shall not have occurred and be
continuing) and the Purchaser written notice
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of any such change and no later than five days after the effective date thereof,
shall file appropriate amendments to all previously filed financing statements
or continuation statements. At least 60 days prior to the date of any relocation
of its principal executive office, the Seller shall give the Trustee, the
Certificate Insurer (so long as an Insurer Default shall not have occurred and
be continuing) and the Purchaser written notice thereof if, as a result of such
relocation, the applicable provisions of the UCC would require the filing of any
amendment of any previously filed financing or continuation statement or of any
new financing statement and the Seller shall within five days after the
effective date thereof, file any such amendment or new financing statement. The
Seller shall at all times maintain each office from which it shall service
Receivables, and its principal executive office, within the United States of
America.
(c) Accounts and Records. The Seller shall maintain accounts and records as
to each Receivable accurately and in sufficient detail to permit the reader
thereof to know at any time the status of such Receivable, including payments
and recoveries made and payments owing (and the nature of each).
(d) Maintenance of Computer Systems. The Seller shall maintain its computer
systems so that, from and after the time of sale hereunder of the 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.
(e) Sale of Other Receivables. If at any time the Seller shall propose to
sell, grant a security interest in, or otherwise transfer any interest in any
automobile or light-duty truck receivables (other than the 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.
(f) Access to Records. The Seller shall permit the Purchaser and its agents
at any time during normal business hours to inspect, audit, and make copies of
and abstracts from the Seller's records regarding any Receivable.
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(g) List of Receivables. Upon request, the Seller shall furnish to the
Purchaser, within five Business Days, a list of all Receivables (by contract
number and name of Obligor) then owned by the Purchaser, together with a
reconciliation of such list to the Schedule of Receivables.
5.2. Other Liens or Interests. Except for the conveyances hereunder and
pursuant to the Pooling and Servicing Agreement, the Seller will not sell,
pledge, assign or transfer to any other Person, or grant, create, incur, assume
or suffer to exist any lien on any interest therein, and the Seller shall defend
the right, title, and interest of the Purchaser in, to and under such
Receivables against all claims of third parties claiming through or under the
Seller; provided, however, that the Seller's obligations under this Section 5.2
shall terminate upon the termination of the Trust pursuant to Section 11.1 of
the Pooling and Servicing Agreement.
5.3. Chief Executive Office. During the term of the Receivables, the Seller
will maintain its chief executive office in one of the United States, except
Louisiana or Vermont.
5.4. Costs and Expenses. The Seller agrees to pay all reasonable costs and
disbursements in connection with the perfection, as against all third parties,
of the Purchaser's right, title and interest in and to the Receivables.
5.5. Delivery of Receivable Files. On or prior to the Closing Date, the
Seller shall deliver the Receivable Files to the Trustee at the location
specified in Schedule B to the Pooling and Servicing Agreement. The Seller shall
have until the last day of the second Collection Period following receipt from
the Trustee of notification, pursuant to Section 2.8 of the Pooling and
Servicing Agreement, that there has been a failure to deliver a file with
respect to a Receivable or that a file is unrelated to the Receivables
identified in Schedule A to the Pooling and Servicing Agreement or that any of
the documents referred to in Section 2.7 of the Pooling and Servicing Agreement
are not contained in a Receivable File, to deliver such file or any of the
aforementioned documents required to be included in such Receivable File to the
Trustee. Unless such defect with respect to such Receivable File shall have been
cured by the last day of the second Collection Period following discovery
thereof by the Trustee, the Seller hereby agrees to repurchase any such
Receivable from the Trust as of such last day. In consideration of the purchase
of the Receivable, the Seller shall remit the Purchase Amount in the manner
specified in Section 4.5 of the Pooling and Servicing Agreement. The sole remedy
hereunder of the Trustee, the Trust or the Certificateholders with respect to a
breach of this Section 5.5, shall be to require the Seller to repurchase the
Receivable pursuant to this Section 5.5. Upon
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receipt of the Purchase Amount, the Trustee shall release to the Seller or its
designee the related Receivable File and shall execute and deliver all
instruments of transfer or assignment, without recourse, as are prepared by the
Seller and delivered to the Trustee and are necessary to vest in the Seller or
such designee title to the Receivable.
5.6. Indemnification. (a) The Seller shall indemnify the Purchaser for any
liability as a result of the failure of a Receivable to be originated in
compliance with all requirements of law and for any breach of any of its
representations and warranties contained herein.
(b) The Seller shall defend, indemnify, and hold harmless the Purchaser
from and against any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from the use, ownership, or operation
by the Seller or any Affiliate thereof of a Financed Vehicle.
(c) The Seller shall defend, indemnify, and hold harmless the Purchaser
from and against any and all taxes, except for taxes on the net income of the
Purchaser, that may at any time be asserted against the Purchaser with respect
to the transactions contemplated herein, including, without limitation, any
sales, gross receipts, general corporation, tangible personal property,
privilege, or license taxes and costs and expenses in defending against the
same.
(d) The Seller shall defend, indemnify, and hold harmless the Purchaser
from and against any and all costs, expenses, losses, damages, claims and
liabilities to the extent that such cost, expense, loss, damage, claim or
liability arose out of, or was imposed upon the Purchaser through, the
negligence, willful misfeasance, or bad faith of the Seller in the performance
of its duties under the Agreement, or by reason of reckless disregard of the
Seller's obligations and duties under the Agreement.
(e) The Seller shall defend, indemnify, and hold harmless the Purchaser
from and against all costs, expenses, losses, damages, claims and liabilities
arising out of or incurred in connection with the acceptance or performance of
the Seller's trusts and duties as Servicer under the Pooling and Servicing
Agreement, except to the extent that such cost, expense, loss, damage, claim or
liability shall be due to the willful misfeasance, bad faith, or negligence
(except for errors in judgment) of the Purchaser.
Indemnification under this Section shall include reasonable fees and
expenses of litigation and shall survive termination of
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the Trust. These indemnity obligations shall be in addition to any obligation
that the Seller may otherwise have.
5.7. Sale. The Seller agrees to treat this conveyance for all purposes
(including without limitation tax and financial accounting purposes) as a sale
on all relevant books, records, tax returns, financial statements and other
applicable documents.
5.8. Non-Petition. In the event of any breach of a representation and
warranty made by the Purchaser hereunder, the Seller covenants and agrees that
it will not take any action to pursue any remedy that it may have hereunder, in
law, in equity or otherwise, until a year and a day have passed since the date
on which all certificates issued by the Trust or a similar trust formed by the
Purchaser have been paid in full. The Purchaser and the Seller agree that
damages will not be an adequate remedy for such breach and that this covenant
may be specifically enforced by the Purchaser or by the Trustee on behalf of the
Trust.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1. Obligations of Seller. The obligations of the Seller under this
Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
6.2. Repurchase Events. The Seller hereby covenants and agrees with the
Purchaser for the benefit of the Purchaser, the Trustee, the Certificate Insurer
and the Certificateholders, that (i) the occurrence of a breach of any of the
Seller's representations and warranties contained in Section 3.2(b) hereof
(without regard to any limitations regarding the Seller's knowledge) and (ii)
the failure of the Seller to timely comply with its obligations pursuant to
Section 5.5 hereof, shall constitute events obligating the Seller to repurchase
the affected Receivables hereunder ("Repurchase Events"), at the Purchase Amount
from the Trust. Unless the breach of any of the Seller's representations and
warranties shall have been cured by the last day of the second Collection Period
following the discovery thereof by or notice to the Purchaser and the Seller of
such breach, the Seller shall repurchase any Receivable if such Receivable is
materially and adversely affected by the breach as of the last day of such
second Collection Period (or, at the Seller's option, the last day of the first
Collection Period following the discovery) and, in the event that the breach
relates to a characteristic of the Receivables in the aggregate, and if the
Trust is materially and adversely affected by such breach, unless the breach
shall have been cured by such second
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Collection Period, the Seller shall purchase such aggregate Principal Balance of
Receivables, such that following such purchase such representation shall be true
and correct with respect to the remainder of the Receivables in the aggregate.
The provisions of this Section 6.2 are intended to grant the Trustee a direct
right against the Seller to demand performance hereunder, and in connection
therewith the Seller waives any requirement of prior demand against the
Purchaser and waives any defaults it would have against the Purchaser with
respect to such repurchase obligation. Any such purchase shall take place in the
manner specified in Section 4.5 of the Pooling and Servicing Agreement. For
purposes of this Section 6.2, the Purchase Amount of a Receivable which is not
consistent with the warranty pursuant to Section 3.2(b)(iv)(a)(3) or (iv)(a)(5)
shall include such additional amount as shall be necessary to provide the full
amount of interest as contemplated therein. The sole remedy hereunder of the
Certificateholders, the Trust, the Certificate Insurer, the Trustee or the
Purchaser against the Seller with respect to any Repurchase Event shall be to
enforce the Seller's obligation to repurchase such Receivables pursuant to this
Agreement; provided, however, that the Seller shall indemnify the Trustee, the
Certificate Insurer, the Trust and the Certificateholders against all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel, which may be asserted against or incurred by any of them,
as a result of third party claims arising out of the events or facts giving rise
to such breach. Upon receipt of the Purchase Amount, the Purchaser shall cause
the Trustee to release the related Receivables File to the Seller and to execute
and deliver all instruments of transfer or assignment, without recourse, as are
necessary to vest in the Seller title to the Receivable. Notwithstanding the
foregoing, if it is determined that consummation of the transactions
contemplated by the Pooling and Servicing Agreement and the other transaction
documents referenced in such Agreement, servicing and operation of the Trust
pursuant to such Agreement and such other documents, or the ownership of a
Certificate by a Holder constitutes a violation of the prohibited transaction
rules of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986, as amended ("Code") for which
no statutory exception or administrative exemption applies, such violation shall
not be treated as a Repurchase Event.
6.3. Seller's Assignment of Purchased Receivables. With respect to all
Receivables repurchased by the Seller pursuant to this Agreement, the Purchaser
shall assign, without recourse except as provided herein, representation or
warranty, to the Seller all the Purchaser's right, title and interest in and to
such Receivables, and all security and documents relating thereto.
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6.4. Conveyance as Sale of Receivables Not Financing. The parties hereto
intend that the conveyance hereunder be a sale of the Receivables and the other
Transferred Property from the Seller to the Purchaser and not a financing
secured by such assets; and the beneficial interest in and title to the
Receivables and the other Transferred Property shall not be part of the Seller's
estate in the event of the filing of a bankruptcy petition by or against the
Seller under any bankruptcy law. In the event that any conveyance hereunder is
for any reason not considered a sale, the parties intend that this Agreement
constitute a security agreement under the UCC (as defined in the UCC as in
effect in the State of California) and applicable law, and the Seller hereby
grants to the Purchaser a first priority perfected security interest in, to and
under the 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 payment and
performance of the Certificates and the repayment of amounts owed to the
Purchaser from the Seller.
6.5. Trust. The Seller acknowledges that the Purchaser will, pursuant to
the Pooling and Servicing Agreement, sell the Receivables to the Trust and
assign its rights under this Agreement to the Trustee for the benefit of the
Certificate- holders, and that the representations and warranties contained in
this Agreement and the rights of the Purchaser under this Agreement, including
under Sections 6.2 and 6.3 hereof are intended to benefit such Trust and the
Certificateholders. The Seller also acknowledges that the Trustee on behalf of
the Certificateholders as assignee of the Purchaser's rights hereunder may
directly enforce, without making any prior demand on the Purchaser, all the
rights of the Purchaser hereunder including the rights under Section 6.2 and 6.3
hereof. The Seller hereby consents to such sale and assignment.
6.6. Amendment. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Seller and the Purchaser
with the consent of the Certificate Insurer; provided, however, that (i) any
such amendment that materially adversely affects the rights of the Class A
Certificateholders under the Pooling and Servicing Agreement must be consented
to by the holders of Class A Certificates representing 51% or more of the Class
A Certificate Balance and (ii) any such amendment that materially adversely
affects the rights of the Class B Certificateholders under the Pooling and
Servicing Agreement must be consented to by the holders of Class B Certificates
representing 51% or more of the Class B Certificate Balance.
6.7. Accountants' Letters. (a) KPMG Peat Marwick will review the
characteristics of the Receivables and will compare
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those characteristics to the information with respect to the Receivables
contained in the Offering Documents; (b) The Seller will cooperate with the
Purchaser and KPMG Peat Marwick in making available all information and taking
all steps reasonably necessary to permit such accountants to complete the review
set forth in Section 6.7(a) above and to deliver the letters required of them
under the Underwriting Agreements; and (c) KPMG Peat Marwick will deliver to the
Purchaser a letter, dated the Closing Date, in the form previously agreed to by
the Seller and the Purchaser, with respect to the financial and statistical
information contained in the Offering Documents under the captions "CPS's
Automobile Contract Portfolio -- Delinquency and Loss Experience" and "The
Receivables Pool", certain information relating to the Receivables on magnetic
tape obtained from the Seller and the Purchaser and with respect to such other
information as may be agreed in the form of letter.
6.8. Waivers. No failure or delay on the part of the Purchaser in
exercising any power, right or remedy under 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.
6.9. Notices. All communications and notices pursuant hereto to either
party shall be in writing or by telegraph or telex and addressed or delivered to
it at its address (or in case of telex, at its telex number at such address)
shown in the opening portion of this Agreement or at such other address as may
be designated by it by notice to the other party and, if mailed or sent by
telegraph or telex, shall be deemed given when mailed, communicated to the
telegraph office or transmitted by telex.
6.10. Costs and Expenses. The Seller will pay all expenses incident to the
performance of its obligations under this Agreement and the Seller agrees to pay
all reasonable out-of-pocket costs and expenses of the Purchaser, excluding fees
and expenses of counsel, in connection with the perfection as against third
parties of the Purchaser's right, title and interest in and to the Receivables
and security interests in the Financed Vehicles and the enforcement of any
obligation of the Seller hereunder.
6.11. Representations of the Seller and the Purchaser. The respective
agreements, representations, warranties and other statements by the Seller and
the Purchaser set forth in or made pursuant to this Agreement shall remain in
full force and effect and will survive the closing under Section 2.2 hereof.
6.12. Confidential Information. The Purchaser agrees that it will neither
use nor disclose to any Person the names and
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addresses of the Obligors, except in connection with the enforcement of the
Purchaser's rights hereunder, under the Receivables, under the Pooling and
Servicing Agreement or as required by law.
6.13. Headings and Cross-References. The various headings in this Agreement
are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
6.14. Third Party Beneficiaries. The parties hereto hereby expressly agree
that each of the Trustee for the benefit of the Certificateholders and the
Certificate Insurer shall be third party beneficiaries with respect to this
Agreement, provided, however, that no third party other than the Trustee for the
benefit of the Certificateholders and the Certificate Insurer shall be deemed a
third party beneficiary of this Agreement.
6.15. 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.
6.16. 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 left intentionally blank.]
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
CPS RECEIVABLES CORP.
By:
-------------------------------------
Name:
Title:
CONSUMER PORTFOLIO SERVICES, INC.
By:
-------------------------------------
Name:
Title:
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement dated as of
December 1, 1996, between the undersigned (the "Seller") and CPS Receivables
Corp. (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 and the Pooling and
Servicing Agreement), all right, title and interest of the Seller in and to (i)
the Receivables listed in the Schedule of Receivables and, with respect to
Receivables which are 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
Receivables which are 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, such 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 related to Seller Financed
Vehicles, refunds of unearned premiums with respect to credit life and credit
accident and health insurance policies or certificates covering an Obligor under
a Receivable or Financed Vehicle or his or her obligations with respect to a
Financed Vehicle related to a Receivable 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 LAWS
PRINCIPLES.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of December 19, 1996.
CONSUMER PORTFOLIO SERVICES, INC.
By:
-------------------------------------
Name:
Title:
-2-
Exhibit B
Schedule of Receivables
