ASSIGNMENT
For value received, in accordance with the Purchase Agreement dated as
of May 1, 1997 between the undersigned (the "Seller") and CPS Receivables Corp.
(the "Purchaser") (the "CPS Purchase Agreement"), the undersigned does hereby
sell, transfer, assign and otherwise convey unto the Purchaser, without recourse
(subject to the obligations in the Purchase Agreement and the Initial Sale and
Servicing Agreement), all right, title and interest of the Seller in and to (i)
the CPS Receivables listed in the Schedule of CPS Receivables and, with respect
to Rule of 78's Receivables, all monies due or to become due thereon after the
Cutoff Date (including Scheduled Payments due after the Cutoff Date (including
principal prepayments relating to such Scheduled Payments) but received by the
Seller on or before the Cutoff Date) and, with respect to Simple Interest
Receivables, all monies received thereunder after the Cutoff Date and all
Liquidation Proceeds and Recoveries received with respect to such Receivables;
(ii) the security interests in the Financed Vehicles granted by Obligors
pursuant to the Initial CPS Receivables and any other interest of the Seller in
such Financed Vehicles, including, without limitation, the certificates of title
or, with respect to Financed Vehicles in the State of Michigan, other evidence
of ownership with respect to such Financed Vehicles; (iii) any proceeds from
claims on any physical damage, credit life and credit accident and health
insurance policies or certificates relating to the Financed Vehicles securing
the Initial CPS Receivables; (iv) refunds for the costs of extended service
contracts with respect to Financed Vehicles securing the Initial CPS
Receivables, refunds of unearned premiums with respect to credit life and credit
accident and health insurance policies or certificates covering an Obligor or
Financed Vehicle or his or her obligations with respect to a Financed Vehicle
related to an Initial CPS Receivable and any recourse to Dealers for any of the
foregoing; (v) the Receivable File related to each Initial CPS Receivable; 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 Initial CPS Receivables, the related Receivable Files,
any insurance policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the CPS
Purchase Agreement and is to be governed by the CPS Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the CPS Purchase Agreement.
THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of [ ].
CONSUMER PORTFOLIO SERVICES, INC.
By:
Name:
Title:
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PURCHASE AGREEMENT dated as of this [ ] 1, 199[ ], by and between
CONSUMER PORTFOLIO SERVICES, INC., a California corporation (the "Seller"),
having its principal executive office at 2 ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
CPS RECEIVABLES CORP., a California corporation (the "Purchaser"), having its
principal executive office at 2 ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, in the regular course of its business, the Seller purchases
and services through its auto loan programs certain motor vehicle retail
installment sale contracts secured by new and used automobiles, light trucks,
vans or minivans acquired from motor vehicle dealers.
WHEREAS, the Seller and the Purchaser wish to set forth the terms
pursuant to which the CPS Receivables (as hereinafter defined), are to be sold
by the Seller to the Purchaser, which CPS Receivables together with the Samco
Receivables will be transferred by the Purchaser, pursuant to the Sale and
Servicing Agreement (as hereinafter defined), to CPS Auto Receivables Trust [ ]
to be created thereunder, which Trust will issue notes under the Indenture (as
hereinafter defined) representing indebtedness of the Trust (the "Class A Notes"
and the "Class B Notes" and, together with the Class A Notes, the "Notes") [and
certificates under the Trust Agreement (as hereinafter defined) representing
beneficial interests in the Trust (the "Certificates" and, together with the
Notes, the "Securities")].
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration, and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Terms not defined in this Agreement shall have the meaning set forth in
the Sale and Servicing Agreement and if not defined therein, shall have the
meanings set forth in the Indenture. As used in this Agreement, the following
terms shall, unless the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms of the
terms defined):
"Agreements" means, collectively, this Purchase Agreement and each
Subsequent Purchase Agreement and the Assignments.
"Assignment" means the Initial Assignment and/or any Subsequent
Assignment.
"Base Prospectus" means the Prospectus dated [ ] with respect to CPS
Auto Grantor Trusts and any amendment or supplement thereto.
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[" Certificate Purchase Agreement" means the Certificate Purchase
Agreement dated [ ] among certain investors, CPS and the Purchaser relating to
the Certificates.]
"Closing Date" means the Initial Closing Date and/or any Subsequent
Closing Date.
"CPS" means Consumer Portfolio Services, Inc., a California corporation
and its successors and assigns.
"CPS Receivables" means the Initial CPS Receivables and the Subsequent
CPS Receivables.
"Indenture" means the Indenture dated as of [ ], between CPS Auto
Receivables Trust [ ], as issuer, and [Norwest Bank Minnesota, National
Association], as trustee.
"Initial Assignment" means the Initial CPS Assignment and/or the
Initial Samco Assignment.
"Initial Closing Date" means [ ], 199[ ].
"Initial CPS Assignment" means the assignment dated [ ], by the Seller
to the Purchaser, relating to the purchase of the CPS Receivables and certain
other property related thereto by the Purchaser from the Seller pursuant to this
Agreement, which shall be in substantially the form attached hereto as Exhibit
A.
"Initial CPS Receivables" means each retail installment sale contract
for a Financed Vehicle that appears on the Initial Schedule of CPS Receivables
and all rights thereunder.
"Initial Receivables" means an Initial Samco Receivable and/or an
Initial CPS Receivable.
"Initial Receivables Purchase Price" means $[ ].
"Initial Samco Assignment" means the assignment substantially in the
form of Exhibit A to the Samco Purchase Agreement.
"Initial Samco Receivable" means each retail installment sale contract
for a Financed Vehicle that appears on the Initial Schedule of Samco Receivables
and all rights thereunder.
"Initial Schedule of CPS Receivables" means the list of CPS Receivables
annexed hereto as Exhibit B.
"Initial Schedule of Samco Receivables" means the list of Initial Samco
Receivables annexed as Exhibit B to the Samco Purchase Agreement.
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"Initial Transferred CPS Property" shall have the meaning specified in
Section 2.1(a) hereof.
"Initial Transferred Property" shall have the meaning specified in
Section 2.1(a) hereof.
"Initial Transferred Samco Property" shall have the meaning specified
in the Samco Purchase Agreement.
["Note Purchase Agreement" means the Note Purchase Agreement, dated [ ]
among certain investors, CPS and the Purchaser relating to the Class B Notes.]
"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.]
["Private Placement Memorandum" means the Private Placement Memorandum,
dated [ ], relating to the private placement of the Class B Notes and any
amendment or supplement thereto.]
"Prospectus Supplement" means the Prospectus Supplement dated [ ],
relating to the public offering of the [Class A] Notes and any amendment or
supplement thereto.
"Purchase Agreement" means this Purchase Agreement, as this agreement
may be amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof.
"Purchaser" means CPS Receivables Corp., a California corporation, and
its successors and assigns.
"Receivables" means, collectively, the CPS Receivables and the Samco
Receivables.
"Repurchase Event" shall have the meaning specified in Section 6.2
hereof.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
dated as of [ ], among CPS Auto Receivables Trust [ ] as issuer, 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.
"Samco" means Samco Acceptance Corp., a Texas corporation, and its
successors and assigns.
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"Samco Purchase Agreement" means the Purchase Agreement dated as of [
], between Samco Acceptance Corp., as seller, and CPS Receivables Corp., as
purchaser, as such agreement may be amended, supplemented or otherwise modified
from time to time in accordance with the terms thereof.
"Samco Receivable" shall have the meaning specified in the Samco
Purchase Agreement.
"Schedule of CPS Receivables" means the list of Initial CPS Receivables
annexed hereto as Exhibit B as supplemented by each Schedule of Subsequent CPS
Receivables.
"Schedule of Receivables" means, collectively, the Schedule of CPS
Receivables and the Schedule of Samco Receivables.
"Schedule of Samco Receivables" means the list of Initial Samco
Receivables annexed as Exhibit B to the Samco Purchase Agreement as supplemented
by each Schedule of Subsequent Samco Receivables.
"Schedule of Subsequent CPS Receivables" means the schedule of all CPS
Receivables sold and transferred to the Purchaser pursuant to a Subsequent CPS
Purchase Agreement, which schedule shall be deemed to supplement the Schedule of
CPS Receivables and shall be attached to the related Subsequent Assignment (and
may be in the form of microfiche).
"Schedule of Subsequent Samco Receivables" means the schedule of all
Samco Receivables sold and transferred to the Purchaser pursuant to a Subsequent
Samco Purchase Agreement, which schedule shall be deemed to supplement the
Schedule of Samco Receivables and shall be attached to the related Subsequent
Assignment delivered under the Samco Purchase Agreement (and may be in the form
of microfiche).
"Seller" means Consumer Portfolio Services, Inc., a California
corporation, in its capacity as seller of the CPS Receivables and the other CPS
Transferred Property relating thereto, and its successors and assigns.
"Servicer" means Consumer Portfolio Services, Inc., a California
corporation, in its capacity as Servicer of the Receivables, and its successors
and assigns.
"Subsequent Assignment" means an assignment substantially in the form
of Exhibit A to the form of Subsequent Purchase Agreement attached as Exhibit C
hereto.
"Subsequent Closing Date" means any day on which Subsequent CPS
Receivables or Subsequent Samco Receivables are sold to the Purchaser pursuant
to a Subsequent Purchase Agreement.
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"Subsequent CPS Purchase Agreement" means a subsequent purchase
agreement which shall be in substantially the form of Exhibit C to this Purchase
Agreement by which the Seller will transfer Subsequent CPS Receivables.
"Subsequent CPS Receivable" means each Receivable transferred to the
Purchaser pursuant to a Subsequent CPS Assignment which shall be listed on the
Schedule of Subsequent CPS Receivables attached to the related Subsequent
Assignment.
"Subsequent Purchase Agreement" means the Subsequent CPS Purchase
Agreement and/or the Subsequent Samco Purchase Agreement.
"Subsequent Receivables" means a Subsequent CPS Receivable and/or a
Subsequent Samco Receivable.
"Subsequent Samco Purchase Agreement" means a subsequent purchase
agreement which shall be in substantially the form of Exhibit C to the Samco
Purchase Agreement by which the Seller will transfer Subsequent Samco
Receivables.
"Subsequent Samco Receivable" shall have the meaning specified in the
Samco Purchase Agreement
"Subsequent Transferred CPS Property" shall have the meaning specified
in each Subsequent CPS Purchase Agreement.
"Subsequent Transferred Property" shall have the meaning specified in
Section 2.2(a).
"Transferred CPS Property" means the Initial Transferred CPS Property
and/or the Subsequent Transferred CPS Property.
"Transferred Property" means the Transferred CPS Property and the
Transferred Samco Property.
"Transferred Samco Property" shall have the meaning specified in the
Samco Purchase Agreement.
"Trust" means the CPS Auto Receivables Trust [ ] created by the Trust
Agreement.
"Trust Agreement" means the Trust Agreement dated as of [ ], between
CPS Receivables Corp. and [Owner Trustee].
"UCC" means the Uniform Commercial Code, as in effect from time to time
in the relevant jurisdictions.
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"Underwriters" means [Underwriter[s]].
"Underwriting Agreement" means the Underwriting Agreement, dated [ ],
among the Underwriters, CPS and the Purchaser relating to the [Class A] Notes.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1. Purchase and Sale of Receivables. On the Initial Closing Date,
subject to the terms and conditions of this Purchase Agreement, the Seller
agrees to sell to the Purchaser, and the Purchaser agrees to purchase from the
Seller, without recourse (subject to the obligations in this Purchase Agreement,
each Subsequent Purchase Agreement and the Sale and Servicing Agreement), all of
the Seller's right, title and interest in, to and under the Initial CPS
Receivables and the other Initial Transferred CPS Property relating thereto. The
conveyance to the Purchaser of the Initial CPS Receivables and other Initial
Transferred CPS Property relating thereto is intended as a sale free and clear
of all liens and it is intended that the Initial Transferred CPS Property and
other property of the Purchaser shall not be part of the Seller's estate in the
event of the filing of a bankruptcy petition by or against the Seller under any
bankruptcy law.
(a) Transfer of Receivables. On the Initial Closing Date and
simultaneously with the transactions to be consummated pursuant to the Trust
Agreement, the Indenture and the Sale and Servicing Agreement, the Seller shall
sell, transfer, assign, grant, set over and otherwise convey to the Purchaser,
without recourse (subject to the obligations herein and in the Sale and
Servicing Agreement), all right, title and interest of the Seller in and to (i)
the Initial CPS Receivables listed in the Initial Schedule of CPS Receivables
and, with respect to Rule of 78's Receivables, all monies due or to become due
thereon after the Cutoff Date (including Scheduled Payments due after the Cutoff
Date (including principal prepayments relating to such Scheduled Payments) but
received by the Seller on or before the Cutoff Date) and, with respect to Simple
Interest Receivables, all monies received thereunder after the Cutoff Date and
all Liquidation Proceeds and Recoveries received with respect to such Initial
CPS Receivables; (ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Initial CPS Receivables and any other interest of the
Seller in such Financed Vehicles, including, without limitation, the
certificates of title or, with respect to Financed Vehicles in the State of
Michigan, other evidence of ownership with respect to such Financed Vehicles;
(iii) any proceeds from claims on any physical damage, credit life and credit
accident and health insurance policies or certificates relating to the Financed
Vehicles securing the Initial CPS Receivables or the Obligors thereunder; (iv)
refunds for the costs of extended service contracts with respect to Financed
Vehicles securing the Initial CPS Receivables, refunds of unearned premiums with
respect to credit life and credit accident and health insurance policies or
certificates covering an Obligor under an Initial CPS Receivable or Financed
Vehicle securing an Initial CPS Receivable or his or her obligations with
respect
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to a Financed Vehicle and any recourse to Dealers for any of the foregoing; (v)
the Receivable File related to each Initial CPS Receivable; and (vi) the
proceeds of any and all of the foregoing (collectively, the "Initial Transferred
CPS Property" and together with the Initial Transferred Samco Property, the
"Initial Transferred Property").
(b) Receivables Purchase Price. In consideration for the
Initial CPS Receivables and other Initial Transferred Property described in
Section 2.1(a), the Purchaser shall, on the Initial Closing Date, pay to the
Seller the Initial Receivables Purchase Price. An amount equal to $[ ] of the
Initial Receivables Purchase Price shall be paid to the Seller in cash. The
remaining $[ ] of the Initial Receivables Purchase Price shall be deemed paid
and returned to the Purchaser and be considered a contribution to capital. The
portion of the Initial Receivables Purchase Price to paid in cash be by federal
wire transfer (same day) funds.
2.2. Purchase and Sale of Subsequent Receivables. On the related
Subsequent Closing Date, subject to the terms and conditions of the related
Subsequent CPS Purchase Agreement, the Seller agrees to sell to the Purchaser,
and the Purchaser agrees to purchase from the Seller, without recourse (subject
to the obligations in this Purchase Agreement, each Subsequent CPS Purchase
Agreement and the Sale and Servicing Agreement), all of the Seller's right,
title and interest in, to and under the Subsequent CPS Receivables and the other
Subsequent Transferred CPS Property relating thereto. The conveyance to the
Purchaser of the Subsequent CPS Receivables and other Subsequent Transferred CPS
Property relating thereto is intended as a sale free and clear of all liens and
it is intended that the Subsequent Transferred CPS Property and other property
of the Purchaser shall not be part of the Seller's estate in the event of the
filing of a bankruptcy petition by or against the Seller under any bankruptcy
law.
(a) Transfer of Subsequent Receivables. On the related
Subsequent Closing Date the Seller shall sell, transfer, assign, grant, set over
and otherwise convey to the Purchaser, without recourse (subject to the
obligations herein and in the Sale and Servicing Agreement), all right, title
and interest of the Seller in and to (i) the Subsequent CPS Receivables listed
in the related Schedule of Subsequent CPS Receivables and, with respect to Rule
of 78's Receivables, all monies due or to become due thereon after the related
Subsequent Cutoff Date (including Scheduled Payments due after the related
Subsequent Cutoff Date (including principal prepayments relating to such
Scheduled Payments) but received by the Seller on or before the related
Subsequent Cutoff Date) and, with respect to Simple Interest Receivables, all
monies received thereunder after the related Subsequent Cutoff Date and all
Liquidation Proceeds and Recoveries received with respect to such Subsequent CPS
Receivables; (ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Subsequent CPS Receivables and any other interest of
the Seller in such Financed Vehicles, including, without limitation, the
certificates of title or, with respect to Financed Vehicles in the State of
Michigan, other evidence of ownership with respect to Financed Vehicles; (iii)
any proceeds from claims on any physical damage, credit life and credit accident
and health insurance policies or certificates relating to the Financed
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Vehicles securing the Subsequent CPS Receivables or the Obligors thereunder;
(iv) refunds for the costs of extended service contracts with respect to
Financed Vehicles securing the Subsequent CPS Receivables, refunds of unearned
premiums with respect to credit life and credit accident and health insurance
policies or certificates covering an Obligor or Financed Vehicle securing the
Subsequent CPS Receivables or his or her obligations with respect to such a
Financed Vehicle and any recourse to Dealers for any of the foregoing; (v) the
Receivable File related to each Subsequent CPS Receivable; and (vi) the proceeds
of any and all of the foregoing (collectively, the "Subsequent Transferred CPS
Property" and together with any Subsequent Transferred Samco Property, the
"Subsequent Transferred Property").
(b) The Seller shall transfer to the Issuer the Subsequent CPS
Receivables and the Subsequent Transferred CPS Property as described in
paragraph (a) above only upon the satisfaction of each of the following
conditions on or prior to the related Subsequent Closing Date:
(i) the Seller shall have provided the Trustee, the Owner
Trustee, the Credit Enhancer and the Rating Agencies with an Addition
Notice not later than five days prior to such Subsequent Closing Date
and shall have provided any information reasonably requested by any of
the foregoing with respect to the Subsequent CPS Receivables;
(ii) the Seller shall have delivered to the Owner Trustee and
the Trustee a duly executed Subsequent CPS Purchase Agreement,
substantially in the form of Exhibit C, which shall include supplements
to the Schedule of CPS Receivables, listing the Subsequent CPS
Receivables;
(iii) the Seller shall, to the extent required by Section 4.2
of the Sale and Servicing Agreement, have deposited in the Collection
Account all collections in respect of the Subsequent CPS Receivables;
(iv) as of each Subsequent Closing Date, (A) the Seller shall
not be insolvent and shall not become insolvent as a result of the
transfer of Subsequent CPS Receivables on such Subsequent Closing Date,
(B) the Seller shall not intend to incur or believe that it shall incur
debts that would be beyond its ability to pay as such debts mature, (C)
such transfer shall not have been made with actual intent to hinder,
delay or defraud any Person and (D) the assets of the Seller shall not
constitute unreasonably small capital to carry out its business as
conducted;
(v) the Funding Period shall not have terminated;
(vi) after giving effect to any transfer of Subsequent CPS
Receivables on a Subsequent Closing Date (and any Subsequent Samco
Receivables transferred to the Purchaser on such Subsequent Closing
Date), the Receivables shall meet the following criteria (based on the
characteristics of the Initial Receivables on the Initial Cutoff Date
and the Subsequent Receivables on the related Subsequent Cutoff Dates):
[ ];
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(vii) each of the representations and warranties made by the
Seller pursuant to Section 3.2 with respect to the Subsequent
Receivables to be transferred on such Subsequent Closing Date shall be
true and correct as of the related Subsequent Closing Date, and the
Seller shall have performed all obligations to be performed by it
hereunder on or prior to such Subsequent Closing Date;
(viii) the Seller shall, at its own expense, on or prior to
the Subsequent Closing Date indicate in its computer files that the
Subsequent Receivables identified in the Subsequent Purchase Agreement
have been sold to the Purchaser pursuant to the related Subsequent
Purchase Agreement and subsequently to the Trust pursuant to the Sale
and Servicing Agreement;
(ix) the Seller shall have taken any action required to
maintain the first priority perfected ownership interest of the Trust
in the Owner Trust Estate and the first priority perfected security
interest of the Trustee in the Collateral;
(x) no selection procedures adverse to the interests of the
Securityholders or the Credit Enhancer shall have been utilized in
selecting the Subsequent CPS Receivables;
(xi) the addition of any such Subsequent CPS Receivables shall
not result in a material adverse tax consequence to the Trust or the
Securityholders;
(xii) the Seller shall have delivered (A) to the Rating
Agencies and the Credit Enhancer an opinion of Counsel with respect to
the transfer of such Subsequent CPS Receivables substantially in the
form of the Opinion of Counsel delivered to the Rating Agencies and the
Credit Enhancer on the related Subsequent Closing Date and (B) to the
Trustee the opinion of Counsel required by Section 13.2(i)(1) of the
Sale and Servicing Agreement;
(xiii) each Rating Agency shall have confirmed that the rating
on the Notes shall not be withdrawn or reduced as a result of the
transfer of such Subsequent CPS Receivables to the Trust;
(xiv) all conditions precedent specified in the Sale and
Servicing Agreement with respect to the transfer of such Subsequent CPS
Receivables to the Trust by the Purchaser shall have been satisfied;
and
(xv) the Seller shall have delivered to the Credit Enhancer
and the Trustee an Officers' Certificate confirming the satisfaction of
each condition precedent specified in this paragraph (b).
The Seller covenants that in the event any of the foregoing conditions
precedent are not satisfied with respect to any Subsequent Receivable on the
date required as specified above, the Seller will immediately repurchase such
Subsequent Receivable from the Trust, at
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a price equal to the Purchase Amount thereof, in the manner specified in Section
6.2 of the Sale and Servicing Agreement.
2.3. The Closing. The sale and purchase of the Initial CPS Receivables
shall take place at a closing (the "Closing") at the offices of ▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ on the Closing Date,
simultaneously with the closings under: (a) the Samco Purchase Agreement
pursuant to which Samco Acceptance Corp. will sell the Initial Samco Receivables
to CPS Receivables Corp., (b) the Sale and Servicing Agreement pursuant to which
the Purchaser will assign all of its right, title and interest in and to the
Initial Receivables and the other Initial Transferred Property to the Trust for
the benefit of the Securityholders, (c) the Trust Agreement pursuant to which
the Trust shall be formed and the Certificates issued, (d) the Indenture
pursuant to which the Trust will issue the Notes, (e) the Underwriting Agreement
pursuant to which the Trust shall sell the Class A Notes [and Class B Notes] to
the Underwriters, [(f) the Note Purchase Agreement pursuant to which the
Purchaser shall sell the Class B Notes to one or more investors, and (g) the
Certificate Purchase Agreement pursuant to which the Purchaser shall sell
Certificates to one or more investors].
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
each Closing Date (which representations and warranties shall survive such
Closing Date):
(a) Organization and Good Standing. The Purchaser has been
duly organized and is validly existing as a corporation in good standing under
the laws of the State of California, with power and authority to own its
properties and to conduct its business as such properties shall be currently
owned and such business is presently conducted, and had at all relevant times,
and shall have, power, authority and legal right to acquire and own the
Receivables.
(b) Due Qualification. The Purchaser is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
(c) Power and Authority. The Purchaser has the power and
authority to execute and deliver the Agreements and to carry out its terms and
the execution, delivery and performance of the Agreements have been duly
authorized by the Purchaser by all necessary corporate action.
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(d) Binding Obligation. The Agreements shall constitute a
legal, valid and binding obligation of the Purchaser enforceable in accordance
with its terms.
(e) No Violation. The execution, delivery and performance by
the Purchaser of the Agreements and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof do not conflict
with, result in a breach of any of the terms and provisions of, nor constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or by-laws of the Purchaser, or any indenture, agreement,
mortgage, deed of trust, or other instrument to which the Purchaser is a party
or by which it is bound or to which any of its properties are subject; nor
result in the creation or imposition 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 Sale 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.
(f) No Proceedings. There are no proceedings or investigations
pending, or to the Purchaser's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Purchaser or its properties: (A) asserting the
invalidity of the Agreements or the Securities; (B) seeking to prevent the
issuance of the Securities or the consummation of any of the transactions
contemplated by the Agreements; (C) seeking any determination or ruling that
might materially and adversely affect the performance by the Purchaser of its
obligations under, or the validity or enforceability of, the Agreements or the
Securities; or (D) relating to the Purchaser and which might adversely affect
the Federal or State income, excise, franchise or similar tax attributes of the
Securities.
(g) No Consents. No consent, approval, authorization or order
of or declaration or filing with any governmental authority is required to be
obtained by the Purchaser for the issuance or sale of the Securities or the
consummation of the other transactions contemplated by the Agreements, the Trust
Agreement, the Indenture or the Sale and Servicing Agreement, except such as
have been duly made or obtained.
3.2. Representations and Warranties of the Seller. (a) The
Seller hereby represents and warrants to the Purchaser as of the date
hereof and as of the Closing Date:
(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
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a foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business (including the
origination and the servicing of the Receivables as required by the
Sale and Servicing Agreement) shall require such qualifications.
(iii) Power and Authority. The Seller has the power and
authority to execute and deliver the Agreements and to carry out their
terms; the Seller has full power and authority to sell and assign the
property sold and assigned to the Purchaser and has duly authorized
such sale and assignment to the Purchaser by all necessary corporate
action; and the execution, delivery and performance of the Agreements
have been duly authorized by the Seller by all necessary corporate
action.
(iv) Valid Sale; Binding Obligation. This Purchase Agreement
effects a valid sale, transfer and assignment of the CPS Receivables
and the other Transferred CPS Property conveyed to the Purchaser
pursuant to 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 the Agreements and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions
of, nor constitute (with or without notice or lapse of time) a default
under, the articles of incorporation, as amended, or by-laws of the
Seller, or any indenture, agreement, mortgage, deed of trust, or other
instrument to which the Seller is a party or by which it is bound or to
which any of its properties are subject; nor result in the creation or
imposition of any lien upon any of its properties pursuant to the terms
of any such indenture, agreement, mortgage, deed of trust, or other
instrument (other than the Agreements and the Sale 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 the Agreements or the
Securities; (B) seeking to prevent the issuance of the Securities or
the consummation of any of the transactions contemplated by the
Agreements; (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, the Agreements
or the Securities; or (D) relating to the Seller and which might
adversely affect the Federal or State income, excise, franchise or
similar tax attributes of the Securities.
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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 Securities or the consummation
of the other transactions contemplated by the Agreements, the Trust
Agreement, the Indenture or the Sale and Servicing Agreement, except
such as have been duly made or obtained.
(viii) Financial Condition. The Seller has a positive net
worth and is able to and does pay its liabilities as they mature. The
Seller is not in default under any obligation to pay money to any
Person except for matters being disputed in good faith which do not
involve an obligation of the Seller on a promissory note. The Seller
will not use the proceeds from the transactions contemplated by the
Agreements to give any preference to any creditor or class of
creditors, and this transaction will not leave the Seller with
remaining assets which are unreasonably small compared to its ongoing
operations.
(ix) Fraudulent Conveyance. The Seller is not selling the CPS
Receivables to the Purchaser with any intent to hinder, delay or
defraud any of its creditors; the Seller will not be rendered insolvent
as a result of the sale of the CPS Receivables to the Purchaser.
(b) The Seller makes the following representations and
warranties as to the Receivables (including the Samco Receivables) and the 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 with respect to each Receivable as of the
Initial Closing Date or Subsequent Closing Date on which such Receivable is
transferred to the Purchaser and 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 Sale and Servicing Agreement:
(i) Origination Date. Each Receivable has an origination date
on or after [ ].
(ii) Principal Balance/Number of Contracts. As of the Cutoff
Date, the total aggregate principal balance of the Receivables was $[
]. The Receivables are evidenced by [ ] Contracts.
(iii) Maturity of Receivables. Each Receivable has an original
term to maturity of not less than [ ] months and not more than [ ]
months; the weighted average original term to maturity of the
Receivables is [ ] months as of the Cutoff Date; the remaining term to
maturity of each Receivable was [ ] months or less as of the Cutoff
Date; the weighted average remaining term to maturity of the
Receivables was [ ] months as of the Cutoff Date.
(iv) Characteristics of Receivables. (a) Each Receivable (1)
has been
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originated in the United States of America by a Dealer for the retail
sale of a Financed Vehicle in the ordinary course of such Dealer's
business, has been fully and properly executed by the parties thereto
and has been purchased by the Seller (or, with respect to the Samco
Receivables, Samco) 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 (or, with respect to
the Samco Receivables, Samco) in the Financed Vehicle, which security
interest has been assigned by the Seller (or, with respect to the Samco
Receivables, Samco) 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 [ ]%, (6) that is a Rule of 78's Receivable
provides for, in the event that such Receivable is prepaid, a
prepayment that fully pays the Principal Balance and includes a full
month's interest, in the month of prepayment, at the Annual Percentage
Rate, (7) is a Rule of 78's Receivable or a Simple Interest Receivable,
and (8) was originated by a Dealer and was sold by the Dealer without
any fraud or misrepresentation on the part of such Dealer.
(v) Approximately [ ]% of the aggregate Principal Balance of
the Receivables, constituting [ ]% 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 [ ]% of the aggregate Principal Balance of the
Receivables as of the Cutoff Date were originated in the State of
California; approximately [ ]% of the aggregate Principal Balance of
the Receivables as of the Cutoff Date were originated under the CPS
alpha program; approximately [ ]% of the aggregate Principal Balance of
the Receivables as of the Cutoff Date were originated under the CPS
delta program; approximately [ ]% of the aggregate Principal Balance of
the Receivables as of the Cutoff Date were originated under the CPS
first time buyer program; and approximately [ ]% of the aggregate
Principal Balance of the Receivables were originated under the CPS
standard program; the remaining [ ]% of the aggregate Principal Balance
of the Receivables were acquired by CPS from an unaffiliated party;
approximately [ ]% of the aggregate Principal Balance of the
Receivables are Samco Receivables; no Receivable shall have a payment
that is more than 30 days overdue as of the Cutoff Date; [ ]% of the
aggregate Principal Balance of the Receivables are Rule of 78's
Receivables and [ ]% of the aggregate Principal Balance of the
Receivables are Simple Interest Receivables; each Receivable shall have
a final scheduled payment due no later than [ ]; each Receivable has an
original term to maturity of at least [ ] months and not more than [ ]
months and a remaining term to maturity of
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not less than [ ] months nor greater than [ ] months; and each
Receivable was originated on or before the Cutoff Date.
(vi) Scheduled Payments. Each Receivable had an original
principal balance of not less than $[ ] nor more than $[ ] has an
outstanding principal balance as of the Cutoff Date of not less than $[
] and not more than $[ ] and has a first Scheduled Payment due on or
prior to [ ].
(vii) Characteristics of Obligors. As of the date of each
Obligor's application for the loan from which the related Receivable
arises, each Obligor on any Receivable (a) did not have any material
past due credit obligations or any personal or real property
repossessed or wages garnished within one year prior to the date of
such application, unless such amounts have been repaid or discharged
through bankruptcy, (b) was not the subject of any Federal, State or
other bankruptcy, insolvency or similar proceeding pending on the date
of application that is not discharged, (c) had not been the subject of
more than one Federal, State or other bankruptcy, insolvency or similar
proceeding, and (d) was domiciled in the United States.
(viii) Origination of Receivables. Based on the billing
address of the Obligors and the Principal Balances as of the Cutoff
Date, approximately [ ]% of the Receivables were originated in
California, approximately [ ]% of the Receivables were originated in
Pennsylvania, approximately [ ]% of the Receivables were originated in
Texas, [ ]% were originated in New York and the remaining [ ]% of the
Receivables were originated in all other States.
(ix) 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.
(x) Location of Receivable Files; One Original. 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 Sale and Servicing Agreement. There is only
one original executed copy of each Receivable.
(xi) Schedule of Receivables; Selection Procedures. The
information with respect to the Receivables set forth in the Schedule
of CPS Receivables and the Schedule of Samco Receivables is true and
correct in all material respects as of the close of business on the
Cutoff Date, and no selection procedures adverse to the Securityholders
have been utilized in selecting the Receivables.
(xii) Compliance with Law. Each Receivable, the sale of the
Financed Vehicle and the sale of any physical damage, credit life and
credit accident and health
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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 ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's
Regulations B and Z, the Soldiers' and Sailors' Civil Relief Act of
1940, the Texas Consumer Credit Code, the California Automobile Sales
Finance Act, and state adaptations of the National Consumer Act and of
the Uniform Consumer Credit Code, and other consumer credit laws and
equal credit opportunity and disclosure laws.
(xiii) Binding Obligation. Each Receivable represents the
genuine, legal, valid and binding payment obligation in writing of the
Obligor, enforceable by the holder thereof in accordance with its
terms.
(xiv) No Government Obligor. None of the Receivables are due
from the United States of America or any State or from any agency,
department, or instrumentality of the United States of America or any
State.
(xv) Security Interest in Financed Vehicle. Immediately prior
to the sale, assignment, and transfer thereof, each Receivable shall be
secured by a validly perfected first priority security interest in the
Financed Vehicle in favor of the Seller (or, with respect to the Samco
Receivables, Samco) as secured party, and such security interest is
prior to all other liens upon and security interests in such Financed
Vehicle which now exist or may hereafter arise or be created (except,
as to priority, for any tax liens or mechanics' liens which may arise
after the Closing Date).
(xvi) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released
from the lien granted by the related Receivable in whole or in part.
(xvii) No Waiver. No provision of a Receivable has been
waived.
(xviii) No Amendments. No Receivable has been amended, except
as such Receivable may have been amended to grant extensions which
shall not have numbered more than (a) one extension of one calendar
month in any calendar year or (b) three such extensions in the
aggregate.
(xix) 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.
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(xx) 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.
(xxi) 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 neither
the Seller nor Samco shall waive and neither has waived any of the
foregoing; and no Financed Vehicle shall have been repossessed as of
the Cutoff Date.
(xxii) Insurance; Other. (A) Each Obligor has obtained
insurance covering the Financed Vehicle as of the execution of the
Receivable insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by
comprehensive and collision coverage and each Receivable requires the
Obligor to obtain and maintain such insurance naming the Seller (or,
with respect to the Samco Receivables, Samco) and its successors and
assigns as an additional insured, (B) each Receivable that finances the
cost of premiums for credit life and credit accident or health
insurance is covered by an insurance policy and certificate of
insurance naming the Seller (or, with respect to the Samco Receivables,
Samco) as policyholder (creditor) under each such insurance policy and
certificate of insurance and (C) as to each Receivable that finances
the cost of an extended service contract, the respective Financed
Vehicle which secures the Receivable is covered by an extended service
contract.
(xxiii) Title. It is the intention of the Seller that the
transfer and assignment herein contemplated constitute a sale of the
CPS Receivables from the Seller to the Purchaser and that the
beneficial interest in and title to such CPS 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 CPS 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 CPS 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 CPS
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.
(xxiv) Lawful Assignment. No Receivable has been originated
in, or
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is subject to the laws of, any jurisdiction under which the sale,
transfer, and assignment of such Receivable under this Agreement or the
Samco Purchase Agreement shall be unlawful, void, or voidable. Neither
the Seller nor Samco has entered into any agreement with any account
debtor that prohibits, restricts or conditions the assignment of any
portion of the Receivables.
(xxv) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the
Purchaser a first priority perfected ownership interest in the
Receivables and the other Transferred CPS Property have been made,
taken or performed.
(xxvi) Chattel Paper. Each Receivable constitutes "chattel
paper" under the 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 any Financed Vehicle for delinquent taxes.
(xxix) Title Documents. (A) If the Receivable was originated
in a State in which notation of a security interest on the title
document of the related Financed Vehicle is required or permitted to
perfect such security interest, the title document for such Receivable
shows, or if a new or replacement title document is being applied for
with respect to such Financed Vehicle the title document (or, with
respect to Receivables originated in the State of Michigan, all other
evidence of ownership with respect to such Financed Vehicle) will be
received within 180 days and will show, the Seller (or, with respect to
the Samco Receivables, Samco) named as the original secured party under
the related Receivable as the holder of a first priority security
interest in such Financed Vehicle, and (B) if the Receivable was
originated in a State in which the filing of a financing statement
under the UCC is required to perfect a security interest in motor
vehicles, such filings or recordings have been duly made and show the
Seller (or, with respect to the Samco Receivables, Samco) 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
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Dealer that such title document showing the Seller (or, with respect to
the Samco Receivables, Samco) as first lienholder has been applied for.
(xxx) Casualty. No Financed Vehicle has suffered a Casualty.
(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. No Obligor has any option
under a Receivable to borrow from any Person additional funds secured
by the related Financed Vehicle.
(c) The representations and warranties contained in this
Agreement shall not be construed as a warranty or guaranty by the Seller as to
the future payments by any Obligor. The sale of the CPS Receivables pursuant to
this Agreement shall be "without recourse" except for the representations,
warranties and covenants made by the Seller in this Agreement or the Sale and
Servicing Agreement.
ARTICLE IV
CONDITIONS
4.1. Conditions to Obligation of the Purchaser. On the applicable
Closing Date, the obligation of the Purchaser to purchase the CPS Receivables is
subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct on the related
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 such
Closing Date.
(b) Computer Files Marked. The Seller shall, at its own expense, on or
prior to the Related Closing Date, indicate in its computer files that the CPS
Receivables have been sold to the Purchaser pursuant to this Purchase Agreement
and shall deliver to the Purchaser the Schedule of CPS Receivables certified by
the Chairman, the President, the Vice President or the Treasurer of the Seller
to be true, correct and complete.
(c) Receivable Files Delivered. The Seller shall, at its own expense,
deliver the related Receivable Files to the Trustee at the offices specified in
Schedule B to the Pooling and Servicing Agreement on or prior to the related
Closing Date.
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(d) Documents to be delivered by the Seller at the Closing.
(i) The Assignment. On each Closing Date, the Seller will
execute and deliver the applicable Assignment. The Initial Assignment
shall be substantially in the form of Exhibit A hereto and any
Subsequent Assignment shall be substantially in the form of Exhibit A
to the Form of Subsequent Purchase Agreement attached as Exhibit C
hereto.
(ii) Evidence of UCC-1 Filing. On or prior to the related
Closing Date, the Seller shall record and file, at its own expense, a
UCC-1 financing statement in each jurisdiction in which required by
applicable law, executed by the Seller, as seller or debtor, and naming
the Purchaser, as purchaser or secured party, naming the CPS
Receivables and the other Transferred CPS Property conveyed hereafter
as collateral, meeting the requirements of the laws of each such
jurisdiction and in such manner as is necessary to perfect the sale,
transfer, assignment and conveyance of such CPS Receivables to the
Purchaser. The Seller shall deliver a file- stamped copy, or other
evidence satisfactory to the Purchaser of such filing, to the Purchaser
on or prior to such Closing Date.
(iii) Evidence of UCC-2 Filing. On or prior to the related
Closing Date, the Seller shall cause to be recorded and filed, at its
own expense, appropriate UCC-2 termination statements executed by
General Electric Capital Corporation ("GECC") [and Redwood] 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 such Closing Date.
(iv) Other Documents. On or prior to the related Closing Date,
the Seller shall deliver such other documents as the Purchaser may
reasonably request.
(e) Other Transactions. The transactions contemplated by the Trust
Agreement, the Indenture, the Sale and Servicing Agreement, the Samco Purchase
Agreement, the Underwriting Agreement [and Note Purchase Agreement and
Certificate Purchase Agreement] shall be consummated on the Initial 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 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
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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 CPS Receivables Purchase Price as provided in Section
2.1(b). The Seller hereby directs the Purchaser to wire $[ ] of the Initial
Receivables Purchase Price to Bank of America, ABA: ▇▇▇▇▇▇▇▇▇, Account
#1458425131, Consumer Portfolio Services, Inc. pursuant to wire instructions to
be delivered to the Purchaser on or prior to the Initial 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 Sale and Servicing Agreement, the Sale and Servicing Agreement
shall govern:
5.1. Protection of Right, Title and Interest.
(a) Filings. The Seller shall cause all financing statements and
continuation statements and any other necessary documents covering the right,
title and interest of the Purchaser in and to the Receivables and the other
Transferred Property to be promptly filed, and at all times to be kept recorded,
registered and filed, all in such manner and in such places as may be required
by law fully to preserve and protect the right, title and interest of the
Purchaser hereunder to the Receivables and the other Transferred Property. The
Seller shall deliver to the Purchaser file stamped copies of, or filing receipts
for, any document recorded, registered or filed as provided above, as soon as
available following such recordation, registration or filing. The Purchaser
shall cooperate fully with the Seller in connection with the obligations set
forth above and will execute any and all documents reasonably required to
fulfill the intent of this Section 5.1(a). In the event the Seller fails to
perform its obligations under this subsection, the Purchaser or the Trustee may
do so at the expense of the Seller.
(b) Name and Other Changes. At least 60 days prior to the date the
Seller makes any change in its name, identity or corporate structure which would
make any financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the applicable provisions of the
UCC or any title statute, the Seller shall give the Trustee, the Insurer (so
long as an Insurer Default shall not have occurred and be continuing) and the
Purchaser written notice of any such change and no later than five days after
the effective date thereof, shall file appropriate amendments to all previously
filed financing statements or continuation statements. At least 60 days prior to
the date of any relocation of its principal executive office, the Seller shall
give the Trustee, the Insurer (so long as an Insurer Default shall not have
occurred and be continuing) and the
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Purchaser written notice thereof if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement and the Seller shall within five days after the effective date
thereof, file any such amendment or new financing statement. The Seller shall at
all times maintain each office from which it shall service Receivables, and its
principal executive office, within the United States of America.
(c) Accounts and Records. The Seller shall maintain accounts and
records as to each CPS Receivable accurately and in sufficient detail to permit
the reader thereof to know at any time the status of such CPS Receivable,
including payments and recoveries made and payments owing (and the nature of
each).
(d) Maintenance of Computer Systems. The Seller shall maintain its
computer systems so that, from and after the time of sale hereunder of the CPS
Receivables to the Purchaser, the Seller's master computer records (including
any back-up archives) that refer to a CPS Receivable shall indicate clearly the
interest of the Purchaser in such CPS Receivable and that such CPS Receivable is
owned by the Purchaser. Indication of the Purchaser's ownership of a CPS
Receivable shall be deleted from or modified on the Seller's computer systems
when, and only when, the CPS Receivable shall have been paid in full or
repurchased.
(e) Sale of Other Receivables. If at any time the Seller shall propose
to sell, grant a security interest in, or otherwise transfer any interest in any
automobile or light- duty truck receivables (other than the CPS Receivables) to
any prospective purchaser, lender, or other transferee, the Seller shall give to
such prospective purchaser, lender, or other transferee computer tapes, records,
or print-outs (including any restored from back-up archives) that, if they shall
refer in any manner whatsoever to any CPS Receivable, shall indicate clearly
that such CPS Receivable has been sold and is owned by the Purchaser unless such
CPS Receivable has been paid in full or repurchased.
(f) Access to Records. The Seller shall permit the Purchaser and its
agents at any time during normal business hours to inspect, audit, and make
copies of and abstracts from the Seller's records regarding any Receivable.
(g) List of Receivables. Upon request, the Seller shall furnish to the
Purchaser, within five Business Days, a list of all CPS Receivables (by contract
number and name of Obligor) then owned by the Purchaser, together with a
reconciliation of such list to the Schedule of CPS Receivables.
5.2. Other Liens or Interests. Except for the conveyances hereunder and
pursuant to the Sale and Servicing Agreement, the Seller will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume or
suffer to exist any lien on any interest therein, and the Seller shall defend
the right, title, and interest of the Purchaser in, to and under the Receivables
against all claims of third parties claiming through or under the Seller
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(or, with respect to the Samco Receivables, Samco).
5.3. Chief Executive Office. During the term of the Receivables, the
Seller will maintain its chief executive office in one of the United States,
except Louisiana or Vermont.
5.4. Costs and Expenses. The Seller agrees to pay all reasonable costs
and disbursements in connection with the perfection, as against all third
parties, of the Purchaser's right, title and interest in and to the CPS
Receivables.
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 Sale and Servicing Agreement. The Seller shall
have until the last day of the second Collection Period following receipt from
the Trustee of notification, pursuant to Section 2.8 of the Sale and Servicing
Agreement, that there has been a failure to deliver a file with respect to a
Receivable (including a Samco Receivable) or that a file is unrelated to the
Receivables identified in Schedule A to the Sale and Servicing Agreement or that
any of the documents referred to in Section 2.7 of the Sale and Servicing
Agreement are not contained in a Receivable File, to deliver such file or any of
the aforementioned documents required to be included in such Receivable File to
the Trustee. Unless such defect with respect to such Receivable File shall have
been cured by the last day of the second Collection Period following discovery
thereof by the Trustee, the Seller hereby agrees to repurchase any such
Receivable from the Trust as of such last day. In consideration of the purchase
of the Receivable, the Seller shall remit the Purchase Amount in the manner
specified in Section 4.5 of the Sale and Servicing Agreement. The sole remedy
hereunder of the Trustee, the Trust or the Securityholders with respect to a
breach of this Section 5.5, shall be to require the Seller to repurchase the
Receivable pursuant to this Section 5.5. Upon receipt of the Purchase Amount,
the Trustee shall release to the Seller or its designee the related Receivable
File and shall execute and deliver all instruments of transfer or assignment,
without recourse, as are prepared by the Seller and delivered to the Trustee and
are necessary to vest in the Seller or such designee title to the Receivable.
5.6. Indemnification. (a) 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
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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 Sale and Servicing
Agreement, except to the extent that such cost, expense, loss, damage, claim or
liability shall be due to the willful misfeasance, bad faith, or negligence
(except for errors in judgment) of the Purchaser.
Indemnification under this Section 5.6 shall include reasonable fees
and expenses of litigation and shall survive payment of the Notes and
Certificates. These indemnity obligations shall be in addition to any obligation
that the Seller may otherwise have.
5.7. Sale. The Seller agrees to treat this conveyance for all purposes
(including without limitation tax and financial accounting purposes) as a sale
on all relevant books, records, tax returns, financial statements and other
applicable documents.
5.8. Non-Petition. In the event of any breach of a representation and
warranty made by the Purchaser hereunder, the Seller covenants and agrees that
it will not take any action to pursue any remedy that it may have hereunder, in
law, in equity or otherwise, until a year and a day have passed since the date
on which all 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 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 Insurer and the
Securityholders, that (i) the occurrence of a breach of any of the Seller's
representations and warranties
-24-
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 (including any
affected Samco Receivables) hereunder ("Repurchase Events"), at the Purchase
Amount from the Trust. Unless the breach of any of the Seller's representations
and warranties shall have been cured by the last day of the second Collection
Period following the discovery thereof by or notice to the Purchaser and the
Seller of such breach, the Seller shall repurchase any Receivable if such
Receivable is materially and adversely affected by the breach as of the last day
of such second Collection Period (or, at the Seller's option, the last day of
the first Collection Period following the discovery) and, in the event that the
breach relates to a characteristic of the Receivables in the aggregate, and if
the Trust is materially and adversely affected by such breach, unless the breach
shall have been cured by such second Collection Period, the Seller shall
purchase such aggregate Principal Balance of Receivables, such that following
such purchase such representation shall be true and correct with respect to the
remainder of the Receivables in the aggregate. The provisions of this Section
6.2 are intended to grant the Trustee a direct right against the Seller to
demand performance hereunder, and in connection therewith the Seller waives any
requirement of prior demand against the Purchaser and waives any defaults it
would have against the Purchaser with respect to such repurchase obligation. Any
such purchase shall take place in the manner specified in Section 5.6 of the
Sale and Servicing Agreement. For purposes of this Section 6.2, the Purchase
Amount of a Receivable which is not consistent with the warranty pursuant to
Section 3.2(b)(iv)(a)(5) or (iv)(a)(6) shall include such additional amount as
shall be necessary to provide the full amount of interest as contemplated
therein. The sole remedy hereunder of the Securityholders, the Trust, the
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 Insurer, the Trust and the Securityholders against
all costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel, which may be asserted against or
incurred by any of them, as a result of third party claims arising out of the
events or facts giving rise to such breach. Upon receipt of the Purchase Amount,
the Purchaser shall cause the Trustee to release the related Receivables File to
the Seller and to execute and deliver all instruments of transfer or assignment,
without recourse, as are necessary to vest in the Seller title to the
Receivable. Notwithstanding the foregoing, if it is determined that consummation
of the transactions contemplated by the Sale and Servicing Agreement, the
Indentures and the other transaction documents referenced in such Agreement,
servicing and operation of the Trust pursuant to Trust Agreement and such other
documents, or the ownership of a Security by a Holder constitutes a violation of
the prohibited transaction rules of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or the Internal Revenue Code of 1986, as amended
("Code") for which no statutory exception or administrative exemption applies,
such violation shall not be treated as a Repurchase Event.
6.3. Seller's Assignment of Purchased Receivables. With respect to all
Receivables repurchased by the Seller pursuant to this Agreement, the Purchaser
shall assign, without
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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.
6.4. Conveyance as Sale of Receivables Not Financing. The parties
hereto intend that the conveyance hereunder be a sale of the CPS Receivables and
the other Transferred CPS Property from the Seller to the Purchaser and not a
financing secured by such assets; and the beneficial interest in and title to
the CPS Receivables and the other Transferred CPS Property shall not be part of
the Seller's estate in the event of the filing of a bankruptcy petition by or
against the Seller under any bankruptcy law. In the event that any conveyance
hereunder is for any reason not considered a sale, the parties intend that this
Agreement constitute a security agreement under the UCC (as defined in the UCC
as in effect in the State of California) and applicable law, and the Seller
hereby grants to the Purchaser a first priority perfected security interest in,
to and under the CPS Receivables and the other Transferred CPS Property being
delivered to the Purchaser on the Closing Date, and other property conveyed
hereunder and all proceeds of any of the foregoing for the purpose of securing
payment and performance of the Securities and the repayment of amounts owed to
the Purchaser from the Seller.
6.5. Trust. The Seller acknowledges that the Purchaser will, pursuant
to the Sale and Servicing Agreement, sell the Receivables to the Trust and
assign its rights under this Purchase Agreement and the Samco Purchase Agreement
to the Trust, and that the representations and warranties contained in this
Agreement and the rights of the Purchaser under this Purchase Agreement,
including under Sections 6.2 and 6.4 hereof are intended to benefit such Trust
and the Securityholders. The Seller also acknowledges that the Trustee on behalf
of the Securityholders as assignee of the Purchaser's rights hereunder may
directly enforce, without making any prior demand on the Purchaser, all the
rights of the Purchaser hereunder including the rights under Section 6.2 and 6.4
hereof. The Seller hereby consents to such sale and assignment.
6.6. Amendment. This Purchase Agreement may be amended from time to
time by a written amendment duly executed and delivered by the Seller and the
Purchaser with the consent of the Insurer; provided, however, that (i) any such
amendment that materially adversely affects the rights of the Class A
Noteholders under the Sale and Servicing Agreement must be consented to by the
holders of Class A Notes representing 51% or more of the outstanding principal
amounts Class A Notes, (ii) any such amendment that materially adversely affects
the rights of the Class B Noteholders under the Sale and Servicing Agreement
must be consented to by the holders of Class B Notes representing 51% or more of
the outstanding principal amounts Class B Notes and (iii) any amendment that
materially adversely affects the rights of the Certificateholders under the Sale
and Servicing Agreement must be consented to by the holders of Certificates
representing 51% or more of the Certificate Balance.
6.7. Accountants' Letters. (a) [ ] will review the characteristics of
the
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Receivables and will compare those characteristics to the information with
respect to the Receivables contained in the Offering Documents; (b) The Seller
will cooperate with the Purchaser and [ ] in making available all information
and taking all steps reasonably necessary to permit such accountants to complete
the review set forth in Section 6.7(a) above and to deliver the letters required
of them under the Underwriting Agreement; and (c) [ ] will deliver to the
Purchaser a letter, dated the initial Closing Date, in the form previously
agreed to by the Seller and the Purchaser, with respect to the financial and
statistical information contained in the Offering Documents under the captions
"CPS's Automobile Contract Portfolio -- Delinquency and Loss Experience" and
"The Receivables Pool", certain information relating to the Receivables on
magnetic tape obtained from the Seller and the Purchaser and with respect to
such other information as may be agreed in the form of letter.
6.8. Waivers. No failure or delay on the part of the Purchaser in
exercising any power, right or remedy under the Agreements shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
6.9. Notices. All communications and notices pursuant hereto to either
party shall be in writing or by telegraph or telex and addressed or delivered to
it at its address (or in case of telex, at its telex number at such address)
shown in the opening portion of this Purchase Agreement or at such other address
as may be designated by it by notice to the other party and, if mailed or sent
by telegraph or telex, shall be deemed given when mailed, communicated to the
telegraph office or transmitted by telex.
6.10. Costs and Expenses. The Seller will pay all expenses incident to
the performance of its obligations under this Purchase Agreement and the Seller
agrees to pay all reasonable out-of-pocket costs and expenses of the Purchaser,
excluding fees and expenses of counsel, in connection with the perfection as
against third parties of the Purchaser's right, title and interest in and to the
CPS Receivables and security interests in the Financed Vehicles and the
enforcement of any obligation of the Seller hereunder.
6.11. Representations of the Seller and the Purchaser. The respective
agreements, representations, warranties and other statements by the Seller and
the Purchaser set forth in or made pursuant to this Purchase Agreement shall
remain in full force and effect and will survive the closing under Section 2.2
hereof.
6.12. Confidential Information. The Purchaser agrees that it will
neither use nor disclose to any Person the names and addresses of the Obligors,
except in connection with the enforcement of the Purchaser's rights hereunder,
under the CPS Receivables, under the Sale and Servicing Agreement or as required
by law.
6.13. Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any
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provision of this Purchase Agreement. References in this Purchase Agreement to
Section names or numbers are to such Sections of this Purchase Agreement.
6.14. Third Party Beneficiaries. The parties hereto hereby expressly
agree that each of the Trustee for the benefit of the Securityholders and the
Insurer shall be third party beneficiaries with respect to this Purchase
Agreement, provided, however, that no third party other than the Trustee for the
benefit of the Securityholders and the Credit Enhancer shall be deemed a third
party beneficiary of this Purchase Agreement.
6.15. Governing Law. THIS PURCHASE AGREEMENT AND THE ASSIGNMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
6.16. Counterparts. This Purchase Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
[Rest of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereby have caused this Purchase
Agreement to be executed by their respective officers thereunto duly authorized
as of the date and year first above written.
CPS RECEIVABLES CORP.
By:
Name:
Title:
CONSUMER PORTFOLIO SERVICES, INC.
By:
Name:
Title:
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement dated as
of [ ], between the undersigned (the "Seller") and CPS Receivables Corp. (the
"Purchaser") (the "CPS Purchase Agreement"), the undersigned does hereby sell,
transfer, assign and otherwise convey unto the Purchaser, without recourse
(subject to the obligations in the Purchase Agreement and the Sale and Servicing
Agreement), all right, title and interest of the Seller in and to (i) the
Initial CPS Receivables listed in the Schedule of CPS Receivables and, with
respect to Rule of 78's Receivables, all monies due or to become due thereon
after the Cutoff Date (including Scheduled Payments due after the Cutoff Date
(including principal prepayments relating to such Scheduled Payments) but
received by the Seller on or before the Cutoff Date) and, with respect to Simple
Interest Receivables, all monies received thereunder after the Cutoff Date and
all Liquidation Proceeds and Recoveries received with respect to such
Receivables; (ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Initial CPS Receivables and any other interest of the
Seller in such Financed Vehicles, including, without limitation, the
certificates of title or, with respect to Financed Vehicles in the State of
Michigan, other evidence of ownership with respect to such Financed Vehicles;
(iii) any proceeds from claims on any physical damage, credit life and credit
accident and health insurance policies or certificates relating to the Financed
Vehicles securing the Initial CPS Receivables; (iv) refunds for the costs of
extended service contracts with respect to Financed Vehicles securing the
Initial CPS Receivables, refunds of unearned premiums with respect to credit
life and credit accident and health insurance policies or certificates covering
an Obligor or Financed Vehicle or his or her obligations with respect to a
Financed Vehicle related to an Initial CPS Receivable and any recourse to
Dealers for any of the foregoing; (v) the Receivable File related to each
Initial CPS Receivable; 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 Initial CPS
Receivables, the related Receivable Files, any insurance policies or any
agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the CPS
Purchase Agreement and is to be governed by the CPS Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the CPS Purchase Agreement.
THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES.
A-1
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of [ ].
CONSUMER PORTFOLIO SERVICES, INC.
By:
Name:
Title:
A-2
Exhibit B
Schedule of CPS Receivables
See Following Page
A-1
EXHIBIT C
FORM OF SUBSEQUENT PURCHASE AGREEMENT
THIS SUBSEQUENT PURCHASE AGREEMENT (the "Subsequent Agreement") is made
and entered into as of , by and between CONSUMER PORTFOLIO SERVICES, INC., a
California corporation (the "Seller"), and CPS RECEIVABLES CORP., a California
corporation (together with its successors and assigns, the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Purchaser, as purchaser, has agreed to purchase from the
Seller, as seller, and the Seller, pursuant to the Receivables Purchase
Agreement (the "Receivables Purchase Agreement") dated as of [ ], between the
Purchaser and the Seller, is transferring to the Purchaser the Subsequent CPS
Receivables listed on the Schedule of Subsequent CPS Receivables annexed hereto
as Exhibit A (the "Subsequent CPS Receivables") and Subsequent Transferred CPS
Property.
NOW THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt of which is acknowledged, the Purchaser and the Seller, intending to
be legally bound, hereby agree as follows:
Definitions
SECTION 1. Capitalized terms used herein without definition shall have
the respective meanings assigned to such terms in the CPS Purchase Agreement.
SECTION 2. Conveyance of Subsequent Receivables. For value received, in
accordance with the CPS Purchase Agreement, the Seller does hereby sell, assign,
transfer and otherwise convey unto the Purchaser, without recourse (but without
limitation of its obligations under the CPS Purchase Agreement), all right,
title and interest of the Seller in and to: (i) the Subsequent CPS Receivables
listed in the related Schedule of Subsequent CPS Receivables and, with respect
to Rule of 78's Receivables, all monies due or to become due thereon after the
related Subsequent Cutoff Date (including Scheduled Payments due after the
related Subsequent Cutoff Date (including principal prepayments relating to such
Scheduled Payments) but received by the Seller on or before the related
Subsequent Cutoff Date) and, with respect to Simple Interest Receivables, all
monies received thereunder after the related Subsequent Cutoff Date and all
Liquidation Proceeds and Recoveries received with respect to such Subsequent CPS
Receivables; (ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Subsequent CPS Receivables and any other interest of
the Seller in such Financed Vehicles, including, without limitation, the
certificates of title or, with
C-1
respect to Financed Vehicles in the State of Michigan, other evidence of
ownership with respect to Financed Vehicles; (iii) any proceeds from claims on
any physical damage, credit life and credit accident and health insurance
policies or certificates relating to the Financed Vehicles securing the
Subsequent CPS Receivables or the Obligors thereunder; (iv) refunds for the
costs of extended service contracts with respect to Financed Vehicles securing
the Subsequent CPS Receivables, refunds of unearned premiums with respect to
credit life and credit accident and health insurance policies or certificates
covering an Obligor or Financed Vehicle securing the Subsequent CPS Receivables
or his or her obligations with respect to such a Financed Vehicle and any
recourse to Dealers for any of the foregoing; (v) the Receivable File related to
each Subsequent CPS Receivable; and (vi) the proceeds of any and all of the
foregoing (collectively, the "Subsequent Transferred CPS Property" and together
with any Subsequent Transferred Samco Property, the "Subsequent Transferred
Property").
SECTION 3. Consideration for Subsequent Transferred Property. In
consideration for the Subsequent CPS Receivables and other Subsequent
Transferred CPS Property, subject to the terms and conditions hereof, the
purchase price for the Subsequent CPS Receivables, in the amount of [$ ], shall
be paid by the Purchaser on the Subsequent Closing Date as follows: (i) $[ ] in
cash shall be paid to the Seller and (ii) $[ ] which shall be deemed paid and
returned to the Purchaser as a contribution to capital.
SECTION 4. Representations and Warranties of the Seller. This Agreement
is made pursuant to and upon the representations, warranties, covenants and
agreements on the part of the Seller contained in the CPS Purchase Agreement and
is to be governed by the CPS Purchase Agreement. All of such representations,
warranties, covenants and agreements are hereby incorporated herein and are in
full force and effect as though specifically set forth herein.
SECTION 5. Representations and Warranties of the Purchaser. This
Agreement is made pursuant to and upon the representations, warranties,
covenants and agreements on the part of the Purchaser contained in the CPS
Purchase Agreement and is to be governed by the CPS Purchase Agreement. All of
such representations, warranties, covenants and agreements are hereby
incorporated herein and are in full force and effect as though specifically set
forth herein.
C-2
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed this __ day of _________, but effective as of the date and year
first written above.
CONSUMER PORTFOLIO SERVICES, INC.,
as Seller
By:
Name:
Title:
CPS RECEIVABLES CORP.,
as Purchaser
By:
Name:
Title:
C-3
EXHIBIT A TO SUBSEQUENT CPS PURCHASE AGREEMENT
FORM OF SUBSEQUENT CPS ASSIGNMENT
For value received, in accordance with the Purchase Agreement dated as
of [ ], 1997, as heretofore amended, supplemented or otherwise modified (the
"CPS Purchase Agreement"), among the undersigned, as Seller, and CPS
Receivables, Corp. (the "Purchaser"), the undersigned does hereby transfer,
assign, grant, set over and otherwise convey to the Purchaser, without recourse
(subject to the obligations in the CPS Purchase Agreement and the Sale and
Servicing Agreement) all right, title and interest of the Seller in and to: (i)
the Subsequent CPS Receivables listed in the related Schedule of Subsequent CPS
Receivables and, with respect to Rule of 78's Receivables, all monies due or to
become due thereon after the related Subsequent Cutoff Date (including Scheduled
Payments due after the related Subsequent Cutoff Date (including principal
prepayments relating to such Scheduled Payments) but received by the Seller on
or before the related Subsequent Cutoff Date) and, with respect to Simple
Interest Receivables, all monies received thereunder after the related
Subsequent Cutoff Date and all Liquidation Proceeds and Recoveries received with
respect to such Subsequent CPS Receivables; (ii) the security interests in the
Financed Vehicles granted by Obligors pursuant to the Subsequent CPS Receivables
and any other interest of the Seller in such Financed Vehicles, including,
without limitation, the certificates of title or, with respect to Financed
Vehicles in the State of Michigan, other evidence of ownership with respect to
Financed Vehicles; (iii) any proceeds from claims on any physical damage, credit
life and credit accident and health insurance policies or certificates relating
to the Financed Vehicles securing the Subsequent CPS Receivables or the Obligors
thereunder; (iv) refunds for the costs of extended service contracts with
respect to Financed Vehicles securing the Subsequent CPS Receivables, refunds of
unearned premiums with respect to credit life and credit accident and health
insurance policies or certificates covering an Obligor or Financed Vehicle
securing the Subsequent CPS Receivables or his or her obligations with respect
to such a Financed Vehicle and any recourse to Dealers for any of the foregoing;
(v) the Receivable File related to each Subsequent CPS Receivable; and (vi) the
proceeds of any and all of the foregoing (collectively, the "Subsequent
Transferred CPS Property" and together with any Subsequent Transferred CPS
Property, the "Subsequent Transferred Property").
The foregoing assignment, transfer and conveyance does not constitute
and is not intended to result in any assumption by the Purchaser of any
obligation of the undersigned to the Obligors, insurers or any other person in
connection with the Subsequent CPS Receivables, the Receivable Files, any
insurance policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of each of the undersigned contained in
the CPS Purchase Agreement and is to be governed by the CPS Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings
C-4
assigned to them in the CPS Purchase Agreement.
This Assignment shall be governed by and construed in accordance with
the internal laws of the State of New York, without regard to principles of
conflicts of law.
IN WITNESS WHEREOF, the undersigned have caused this Assignment to be
duly executed as of [ ].
CONSUMER PORTFOLIO SERVICES, INC.
By:
Name:
Title:
C-5