Exhibit 1.2
EXECUTION COPY
CPS AUTO RECEIVABLES TRUST 1997-4
$54,260,000.00 6.07% Class A-1 Asset Backed Notes
$46,307,598.60 6.30% Class A-2 Asset Backed Notes
$5,293,031.51 10.59% Asset Backed Certificates
UNDERWRITING AGREEMENT
October 16, 1997
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
CPS Receivables Corp. (the "Company"), a California corporation and
wholly-owned subsidiary of Consumer Portfolio Services, Inc., a California
corporation ("CPS"), proposes to issue and sell to you in your capacity as
underwriter (the "Underwriter"), $54,260,000.00 aggregate principal amount of
CPS Auto Receivables Trust 1997-4 6.07% Asset Backed Notes, Class A-1 (the
"Class A-1 Notes") and $46,307,598.60 aggregate principal amount of 6.30% Asset
Backed Notes, Class A-2 (the "Class A-2 Notes" and, together with the Class A-1
Notes the "Class A Notes" or the "Notes") and $5,293,031.51 aggregate principal
amount of 10.59% Asset Backed Certificates (the "Certificates" and, together
with the Notes, the "Securities"). The Notes will be issued by CPS Auto
Receivables Trust 1997-4 (the "Trust") pursuant to the Indenture (the
"Indenture") dated as of October 1, 1997 among CPS Auto Receivables Trust 1997-4
(the "Trust") and Norwest Bank Minnesota, National Association, as trustee (the
"Trustee"). The Certificates will be issued by the Trust pursuant to the Trust
Agreement. The assets of the Trust will include, among other things, a pool of
retail installment sale contracts and all rights and obligations thereunder
(collectively, the "Receivables"), with respect to Rule of 78's Receivables, all
payments due thereon after October 9, 1997 (the "Cutoff Date") and, with respect
to Simple Interest Receivables, all payments received thereunder after the
Cutoff Date, security interests in the used and new automobiles, light trucks,
vans and minivans securing the Receivables, certain bank accounts and the
proceeds thereof, the Policy (for the benefit of the
Class A Noteholders only) and the right of the Company to receive certain
insurance proceeds and certain other property, all as more specifically
described in the Sale and Servicing Agreement, dated as of October 1, 1997,
among the Trust, CPS, as servicer (in such capacity, the "Servicer"), the
Company, as Seller, and Norwest Bank Minnesota National Association, as Trustee.
The Class A-1 Notes will be issued in an aggregate principal amount of
$54,260,000.00 and will bear interest at an annual rate equal to 6.07% (the
"Class A-1 Interest Rate"). The Class A-2 Notes will be issued in an aggregate
principal amount of $46,307,598.60 and will bear interest at an annual rate
equal to 6.30% (the "Class A-2 Interest Rate"). The aggregate principal amount
of the Notes will equal 95% of the aggregate principal balance of the
Receivables as of the Cutoff Date. Calculations of interest for each class of
Notes will be in accordance with the provisions of the Sale and Servicing
Agreement.
The Certificates will be issued in an aggregate principal amount of
$5,293,031.51 which is equal to 5% of the aggregate principal balance of the
Receivables as of the Cutoff Date. The Certificates will bear interest at an
annual rate equal to 10.59% (the "Pass-Through Rate") in accordance with the
provisions of the Trust Agreement.
To the extent not otherwise defined herein, capitalized terms used
herein shall have the meanings assigned to such terms in the Indenture or, if
not defined therein, in the Sale and Servicing Agreement.
As the Underwriter, you have advised the Company that (a) you are
authorized to enter into this Agreement and (b) you are willing to purchase the
aggregate principal amount of the Class A Notes and the Certificates set forth
in Schedule I hereto.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY, CPS and
SAMCO.
The Company, with respect to the Company, CPS, with respect to CPS, and
Xxxxx, with respect to Xxxxx, and both the Company and CPS in all other
instances, each represents and warrants to, and agrees with the Underwriter, as
of the date hereof and as of the Issuance, that:
(a) CPS has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-25301),
including a Base Prospectus, for registration of the offering and sale of the
Class A Notes under the Securities Act of 1933, as amended (the "1933 Act"), and
the rules and regulations (the "1933 Act Regulations") of the Commission
thereunder which conforms with the requirements of the 1933 Act and the 1933 Act
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Regulations. CPS has complied with the conditions for the use of a Registration
Statement on Form S-3. CPS may have filed with the Commission one or more
amendments to such Registration Statement, and may have used a Preliminary Final
Prospectus, each of which has been previously furnished to the Underwriter. The
offering of the Class A Notes is a Delayed Offering and, although the Base
Prospectus may not include all the information with respect to the Class A Notes
and the offering thereof required by the 1933 Act and the 1933 Act Regulations
to be included in the Final Prospectus, the Base Prospectus includes all such
information required by the 1933 Act and the 1933 Act Regulations to be included
therein as of the Effective Date. The Company will hereafter file with the
Commission pursuant to Rules 415 and 424(b), a final supplement to the Base
Prospectus relating to the Class A Notes and the offering thereof. As filed,
such final supplement shall include all required information with respect to the
Class A Notes and, except to the extent the Underwriter shall agree in writing
to any modification thereof, shall be in all substantive respects in the form
furnished to the Underwriter prior to the Execution Time or, to the extent not
completed at the Execution Time, shall be in such form with only such specific
additional information and other changes (beyond that contained in the Base
Prospectus and any Preliminary Final Prospectus) as the Company has advised the
Underwriter, prior to the Execution Time, will be included or made therein.
(b) On the Effective Date, on the date hereof and on the Closing Date,
the Registration Statement did or will, and when the Final Prospectus is first
filed (if required) in accordance with Rule 424(b) and on the Closing Date (as
defined below), the Final Prospectus (as supplemented and amended as of the
Closing Date) will, comply in all material respects with the applicable
requirements of the 1933 Act, the 1933 Act Regulations, the Securities Exchange
Act of 1934, as amended (the "1934 Act"), and the rules and regulations
thereunder (the "1934 Act Regulations"); on the Effective Date, on the date
hereof and on the Closing Date, the Registration Statement, and any information
incorporated therein, did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to Rule 424(b), did
not or will not, and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date, the Final Prospectus (as supplemented and amended in the case
of the Closing Date) will not, include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein not misleading; provided, however, that each of CPS and the Company
makes no representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
information specified in Section 9(b) furnished in writing to the Company by or
on behalf of the Underwriter specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement or amendment thereto) or
the information regarding the Insurer set forth under the heading "THE INSURER"
in or incorporated by reference in the Preliminary Final Prospectus and the
Final Prospectus.
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(c) The terms which follow, when used in this Agreement, shall have the
meanings indicated.
"Base Prospectus" shall mean the prospectus referred to in
Section 1(a) hereof contained in the Registration Statement at the
Effective Date.
"Delayed Offering" shall mean the offering of the Notes
pursuant to Rule 415 which does not commence promptly after the
effective date of the Registration Statement, with the result that only
information required pursuant to Rule 415 need be included in such
Registration Statement at the effective date thereof with respect to
the Notes.
"Effective Date" shall mean each date that the Registration
Statement and any post-effective amendment(s) thereto became or become
effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed by the
Company.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Notes that is first filed pursuant to Rule 424(b) under
the 1933 Act after the Execution Time, together with the Base
Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Base Prospectus which describes the Notes
and the offering thereof and is used prior to filing of the Final
Prospectus.
"Prospectus" shall mean, collectively, the Base Prospectus,
any Preliminary Final Prospectus and the Final Prospectus.
"Registration Statement" shall mean (i) the Registration
Statement referred to in Section 1(a) hereof, including all documents
incorporated therein by reference, exhibits, financial statements and
notes thereto and related schedules and other statistical and financial
data and information included therein, as amended at the Execution Time
(or, if not effective at the Execution Time, in the form in which it
shall become effective); (ii) in the event any post-effective amendment
thereto becomes effective prior to the Closing Date, such Registration
Statement as so amended; and (iii) in the event any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date,
such Registration Statement as so modified by the Rule 462(b)
Registration Statement, from and after the effectiveness thereof. Such
term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
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"Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer
to such rules or regulation under the 1933 Act.
"Rule 430A Information" means information with respect to the
Notes and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" means a Registration
Statement filed pursuant to Rule 462(b) under the 1933 Act relating to
the offering covered by the Registration Statement (File No.
333-25301).
Any reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the 1934 Act on or before
the Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Base Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the 1934 Act after the
Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference.
(d) The Seller, at its own expense in consultation with the
Underwriter, has prepared a private placement memorandum (together with any
exhibits attached thereto, the "Private Placement Memorandum") describing, among
other things, the Certificates, the Receivables, the Policy, the Trust and the
Trust Documents. Copies of the Private Placement Memorandum and any amendments
or supplements thereto to date have been delivered to the Underwriter. From and
after the date of any amendment or supplement to the Private Placement
Memorandum, the term "Private Placement Memorandum" shall mean the Private
Placement Memorandum as so amended or supplemented. The Private Placement
Memorandum, as of its date, and any amendment thereof or supplement thereto, as
of their respective dates, and at all times up to and including the Closing
Date, does not and will not, as of such dates and at such times, contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that each of CPS and the Company
makes no representations or warranties as to (i) the information contained in or
omitted from the Private Placement Memorandum (or any amendment or supplement
thereto) in reliance upon and in conformity with information specified in
Section 9(b) furnished in writing to the Company by or on behalf of the
Underwriter specifically for inclusion in the Private Placement Memorandum (or
any supplement or amendment thereto) or (ii) the information regarding the
Insurer set forth under the heading "THE INSURER" in or incorporated by
reference in the Preliminary Final Prospectus and the
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Final Prospectus (which information referred to in (ii) above the Underwriter
acknowledge has not been included in the Private Placement Memorandum).
(e) Each of the Company and CPS is a corporation duly organized,
validly existing and in good standing under the laws of the State of California
and is duly qualified to transact business as a foreign corporation in each
jurisdiction in which it is required to be so qualified and in which the failure
to so qualify, taken in the aggregate, would have a material adverse effect on
it.
(f) Samco Acceptance Corp. ("Samco") is a corporation duly organized,
validly existing and in good standing under the laws of Delaware and is duly
qualified to transact business as a foreign corporation in each jurisdiction in
which it is required to be so qualified and in which failure to so qualify,
taken in the aggregate, would have a material adverse affect on it.
(g) Since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus and in the Private Placement
Memorandum, there has not been any material adverse change, or any development
which could reasonably be expected to result in a material adverse change, in or
affecting the financial position, shareholders' equity or results of operations
of the Company, CPS or Samco or the Company's or CPS's or Samco's ability to
perform its obligations under this Agreement, the Indenture, the Trust Agreement
or the Sale and Servicing Agreement or any of the other Basic Documents (as
defined below), other than as set forth or incorporated by reference in the
Registration Statement or as set forth in the Final Prospectus and in the
Private Placement Memorandum.
(h) Except for the registration of the Class A Notes under the 1933 Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under the 1934 Act in connection with the purchase and
distribution of the Notes by the Underwriter or the filing requirements of Rule
430A or Rule 424(b) under the 1933 Act, no consent, approval, authorization or
order of or declaration or filing with any governmental authority is required
for the issuance or sale of the Notes and the Certificates or the consummation
of the other transactions contemplated by this Agreement or the Sale and
Servicing Agreement or any of the other Basic Documents, except such as have
been duly made or obtained or as will be duly made or obtained on or before the
Closing Date.
(i) Assuming that (i) the Underwriter's representations and warranties
in Section 3 are true, (ii) the representations and agreements of each
Accredited Investor in the form of the letter set forth in Exhibit B-1 to the
Private Placement Memorandum are true and will be complied with, (iii) the
Certificates are offered and sold in the manner contemplated in this Agreement
and in the Private Placement Memorandum and (iv) each Purchaser of Certificates
is an Eligible Purchaser (as defined in Section 3(b)), the Certificates are not
required to be
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registered under Section 5 of the 1933 Act in connection with the offer,
issuance, sale and delivery thereof as contemplated by the Private Placement
Memorandum and this Agreement.
(j) None of the Seller, CPS, Samco or anyone authorized to act on their
behalf has offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate, or any other security similar to
the Certificates of the Seller, CPS, Samco or of any entity organized or
originated by the Seller, CPS or Samco to, or solicited any offer to buy or
accept a transfer, pledge or other disposition of any Certificate, any interest
in any Certificate or any such other similar security from, or otherwise
approached or negotiated with respect to any Certificate, any interest in any
Certificate or any such other similar security with, any person in any manner,
or made any general solicitation by means of general advertising or in any other
manner or taken any other action, that would constitute a distribution of the
Certificates under the 1933 Act, or that would render the offer or sale of any
Certificate by the Underwriter a violation of the 1933 Act or any state
securities law, or require registration or qualification pursuant thereto, or
would require qualification of the Indenture under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), or require registration under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), nor
will the Seller, CPS or Samco act, nor has the Seller, CPS or Samco authorized,
nor will the Seller, CPS or Samco authorize, any person to act, in such manner
with respect to any Certificate.
(k) The Commission has not issued an order preventing or suspending the
use of any Prospectus relating to the proposed offering of the Securities, nor
instituted proceedings for that purpose. The Registration Statement contains,
and the Final Prospectus together with any amendments or supplements thereto
will contain, all statements which are required to be stated therein by, and
will conform to, the requirements of the 1933 Act and the 1933 Act Regulations.
(l) The documents (other than the financial statements of the Insurer,
as to which no representation is made by CPS or the Company) which are
incorporated by reference in the Registration Statement, the Final Prospectus
and the Private Placement Memorandum or from which information is so
incorporated by reference, as of the dates they were filed with the Commission,
complied in all material respects with the requirements of the 1933 Act, the
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, as applicable,
and any documents so filed and incorporated by reference subsequent to the
Effective Date shall, when they are filed with the Commission, conform in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations.
(m) Each of the Company, CPS and Xxxxx confirms as of the date hereof
that it is in compliance with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, An Act Relating to Disclosure of doing Business with Cuba, and
each of the Company, CPS and Xxxxx further agrees that if it commences engaging
in business with the government of Cuba or with any person or affiliate located
in Cuba after the date the Registration Statement becomes or has become
effective with the Commission or with the Florida Department of Banking and
Finance
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(the "Department"), whichever date is later, or if the information included in
the Final Prospectus, if any, concerning either the Company's, CPS's or Samco's
business with Cuba or with any person or affiliate located in Cuba changes in
any material way, each of the Company, CPS and Samco, as the case may be, will
provide the Department notice of such business or change, as appropriate, in a
form acceptable to the Department.
(n) All representations and warranties of the Company and CPS and Samco
contained in each of the Basic Documents, including this Agreement, will be true
and correct in all material respects when delivered and as of the Closing Date
and are hereby incorporated by reference as if each such representation and
warranty were specifically made herein.
(o) Each of the Company and CPS and Samco has full power and authority
(corporate and other) to enter into and perform its obligations under this
Agreement, the Certificate Purchase Agreement, the Indenture, the Trust
Agreement, the Sale and Servicing Agreement, the CPS Purchase Agreement, the
Samco Purchase Agreement, the Insurance Agreement, the Indemnification
Agreement, the Spread Account Agreement, the Lock-Box Agreement and the
Servicing Assumption Agreement (collectively, the "Basic Documents"), and to
consummate the transactions contemplated hereby and thereby.
(p) On or before the Closing Date, the direction by the Company to the
Trustee to authenticate the Notes and the Certificates will have been duly
authorized by the Company, the Notes and the Certificates will have been duly
executed and delivered by the Company and, when authenticated by the Trustee in
accordance with the Indenture and the Trust Agreement and delivered and paid for
pursuant to this Agreement, will be duly issued and will entitle the holder
thereof to the benefits and security afforded by the Indenture and the Trust
Agreement, subject as to the enforcement of remedies (x) to applicable
bankruptcy, insolvency, reorganization, moratorium, and other similar laws
affecting creditors' rights generally and (y) to general principles of equity
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(q) This Agreement and each Basic Document to which the Company or CPS
or Samco is a party has been duly authorized, executed and delivered by each of
the Company and CPS and Samco, as applicable, and constitutes a valid and
binding agreement of each of the Company and CPS and Samco, as applicable,
enforceable against the Company and CPS and Samco in accordance with its terms,
subject as to the enforcement of remedies (x) to applicable bankruptcy,
insolvency, reorganization, moratorium, and other similar laws affecting
creditors' rights generally, (y) to general principles of equity (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law) and (z) with respect to rights of indemnity under this Agreement, to
limitations of public policy under applicable securities laws.
(r) None of the Company, CPS or Samco is in breach or violation of its
Articles of Incorporation or Charter, as applicable, or By-Laws or in default in
the performance or
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observance of any credit or security agreement or other agreement or instrument
to which it is a party or by which it or its properties may be bound, or in
violation of any applicable law, statute, regulation, order or ordinance of any
governmental body having jurisdiction over it, which breach or violation would
have a material adverse effect on the ability of the Company or CPS or Samco to
perform its obligations under any of the Basic Documents or the Notes or
Certificates.
(s) The issuance and delivery of the Notes and the Certificates, the
consummation of any other of the transactions contemplated herein or in the
Indenture, the Trust Agreement, the Sale and Servicing Agreement or in any of
the other Basic Documents or the fulfillment of the terms of this Agreement, the
Indenture, the Trust Agreement, or the Sale and Servicing Agreement or any of
the other Basic Documents, subject to the registration of the Class A Notes
under the 1933 Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under the 1934 Act in connection with the
purchase and distribution of the Notes by the Underwriter or the filing
requirements of Rule 430A or Rule 424(b) under the 1933 Act, do not and will not
conflict with or violate any term or provision of the Articles of Incorporation
or Charter, as applicable, or By-Laws of the Company or CPS or Samco, any
statute, order or regulation applicable to the Company or CPS or Samco of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Company or CPS or Samco and do not and will not conflict
with, result in a breach or violation or the acceleration of or constitute a
default under or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company or CPS or Samco
(other than in favor of the Trustee, the Trustee or as otherwise permitted under
the Indenture or the Sale and Servicing Agreement) pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or CPS or Samco is a party or by which the
Company or CPS or Samco may be bound or to which any of the property or assets
of the Company or CPS or Samco may be subject except for conflicts, violations,
breaches, accelerations and defaults which would not, individually or in the
aggregate, be materially adverse to the Company or CPS or Samco or materially
adverse to the transactions contemplated by this Agreement or the Basic
Documents.
(t) There are no actions or proceedings against, or investigations of,
the Company or CPS pending, or, to the knowledge of the Company or CPS,
threatened, before any court, arbitrator, administrative agency or other
tribunal (i) asserting the invalidity of this Agreement, the other Basic
Documents or the Class A Notes or Certificates, (ii) seeking to prevent the
issuance of the Class A Notes or Certificates or the consummation of any of the
transactions contemplated by this Agreement and the other Basic Documents (iii)
that are reasonably likely to be adversely determined and that would materially
and adversely affect the performance by the Company or CPS of its respective
obligations under, or the validity or enforceability of, this Agreement, the
other Basic Documents or the Class A Notes or Certificates or (iv) seeking to
affect adversely the federal income tax attributes of the Class A Notes and
Certificates as described in the Final Prospectus and the Private Placement
Memorandum.
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(u) Any taxes, fees and other governmental charges due on or prior to
the Closing Date (including, without limitation, sales taxes) in connection with
the execution, delivery and issuance of this Agreement, the Indenture, the Trust
Agreement, the Sale and Servicing Agreement, the other Basic Documents and the
Securities have been or will have been paid at or prior to the Closing Date.
(v) The Receivables are chattel paper as defined in the Uniform
Commercial Code as in effect in the States of California and Texas.
(w) Under generally accepted accounting principles, CPS will report its
transfer of the CPS Receivables to the Company pursuant to the CPS Purchase
Agreement as a sale of the CPS Receivables, Samco will report its transfer of
the Samco Receivables to the Company pursuant to the Samco Purchase Agreement as
a sale of the Samco Receivables and the Company will report its transfer of the
Receivables to the Trustee pursuant to the Sale and Servicing Agreement as a
sale of the Receivables. Each of CPS, Samco and the Company has been advised by
KPMG Peat Marwick, Certified Public Accountants, that the transfers pursuant to
the CPS Purchase Agreement and the Samco Purchase Agreement will be so
classified under generally accepted accounting principles in accordance with
Statement No. 77 of the Financial Accounting Standards Board (December 1983) and
with Statement No. 125 of the Financial Accounting Standards Board (June 1996).
(x) Pursuant to the CPS Purchase Agreement and the Samco Purchase
Agreement, CPS and Samco are transferring to the Company ownership of the
Receivables, the security interests in the Financed Vehicles securing the
Receivables, certain other property related to the Receivables and the proceeds
of each of the foregoing (collectively, the "Trust Property"), and, immediately
prior to the transfer of any Receivables to the Trust, the Company will be the
sole owner of all right, title and interest in, and has good and marketable
title to, the Receivables and the other Trust Property. The assignment of the
Receivables and the other Trust Property, including all the proceeds thereof, to
the Trust pursuant to the Sale and Servicing Agreement, vests in the Trust all
interests which are purported to be conveyed thereby, free and clear of any
liens, security interests or encumbrances.
(y) Immediately prior to the transfer of any Receivables to the Trust,
the Company's interest in such Receivables and the proceeds thereof shall have
been perfected, UCC-1 financing statements (the "Financing Statements")
evidencing (i) the transfer of the applicable CPS Receivables to the Seller
shall have been filed in the Office of the Secretary of State of the State of
California, (ii) the transfer of the applicable Samco Receivables to the Seller
shall have been filed in the Office of the Secretary of State of the State of
Texas, (iii) the transfer of the applicable Receivables to the Trust shall have
been filed in the Office of the Secretary of State of the State of Delaware, and
(iv) the pledge of the applicable Receivables by the Trust to the Trustee and
there shall be no unreleased statements affecting the Receivables filed in any
such office other than the Financing Statements. If a court concludes that the
transfer of the
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Receivables from the Company to the Trust is a sale, then the interest of the
Trust in the Receivables, the other Trust Property and the proceeds thereof,
will be perfected by virtue of the Financing Statements having been filed in the
office of the Secretary of State of the State of California. If a court
concludes that such transfer is not a sale, the Sale and Servicing Agreement and
the transactions contemplated thereby constitute a grant by the Company to the
Trust of a valid security interest in the Receivables, the other Trust Property
and the proceeds thereof, which security interest will be perfected by virtue of
the Financing Statements having been filed in the office of the Secretary of
State of the State of California. No filing or other action, other than the
filing of the Financing Statements in the offices of the Secretaries of State of
the States of California, Delaware and Texas referred to above and the execution
and delivery of the Sale and Servicing Agreement, is necessary to perfect the
interest or the security interest of the Trust in the Receivables and the
proceeds thereof against third parties.
(z) The Indenture has been duly qualified under the Trust Indenture
Act.
(aa) None of the Company, CPS, Samco or the Trust is required to be
registered as an "investment company" under the Investment Company Act.
(bb) The information provided by the Company pursuant to Section 4(m)
hereof will not, at the date thereof, contain any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
2. PURCHASE, SALE AND DELIVERY OF THE NOTES AND CERTIFICATES.
Subject to the terms and conditions and in reliance upon the
representations, warranties and covenants herein set forth, the Company agrees
to sell to the Underwriter, and the Underwriter agrees to purchase from the
Company the initial principal amount of the Notes and Certificates set forth in
Schedule I hereto, at the purchase price specified in Schedule I with respect to
each Class of Notes and Certificates.
The Company will deliver against payment of the purchase price the
Class A Notes in the form of one or more permanent global Notes in definitive
form (the "Global Notes") deposited with the Trustee as custodian for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC and (ii) the Certificates in definitive form registered in the
name of such party as the Underwriter shall direct. Interests in any Global
Notes will be held only in book-entry form through DTC except in the limited
circumstances described in the Final Prospectus. Payment for the Notes will be
made by the Underwriter by wire transfer of same day funds to an account
previously designated to the Underwriter by the Company at the offices of Xxxxx,
Brown & Xxxxx, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:30 a.m. (New York
time) on October 17, 1997, or at such other time as is mutually agreed (such
time being
11
herein referred to as the "Closing Date") against delivery of the Global Notes
and the Certificates representing all of the Securities. The Notes and
Certificates will be made available for inspection at the above office of Xxxxx,
Brown & Xxxxx at least 24 hours prior to the Closing Date.
As used herein, "business day" means a day on which the New York Stock
Exchange is open for trading and on which banks in New York, California and
Minnesota are open for business and are not permitted by law or executive order
to be closed.
3. OFFERING BY THE UNDERWRITER.
(a) The Company, and CPS are advised by the Underwriter that it
proposes to make a public offering of the Class A Notes, as set forth in the
Final Prospectus, from time to time as and when the Underwriter deems advisable
after the Registration Statement becomes effective. The Company agrees that the
Underwriter may, but is not obligated to, make a market in the Class A Notes and
that any such market making by the Underwriter may be discontinued at any time
in the sole discretion of the Underwriter.
(b) The Company and CPS are advised by the Underwriter that the
Underwriter will make offers of the Certificates on the terms set forth in the
Private Placement Memorandum, as amended or supplemented, solely to (i) persons
whom the Underwriter reasonably believes to be "qualified institutional buyers"
as defined in Rule 144A under the 1933 Act (each, a "QIB"), and/or (ii) a
limited number of other institutional "accredited investors", as defined in Rule
501(a)(1), (2), (3) or (7) under the 1933 Act, that make certain representations
and agreements to the Underwriter and the Seller (each, and "Accredited
Investor" and, together with the QIBs, the "Eligible Purchasers");
(c) The Underwriter represents and warrants to the Company and CPS that
it is an "accredited investor" as defined in Rule 501(a)(1) under the 1933 Act
and a Qualified Institutional Buyer within the meaning of Rule 144A of the 1933
Act.
(d) The Underwriter acknowledges that (i) the Certificates have not
been and will not be registered under the 1933 Act or any state securities laws
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except pursuant to an exemption from the
registration requirements of the 1933 Act and (ii) upon original issuance
thereof, and until such time as the same is no longer required under the
applicable requirements of the 1933 Act, the Certificates (and all notes issued
in exchange therefore or in substitution thereof) shall bear the following
legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES THAT THIS SECURITY MAY BE RESOLD,
12
PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) SO LONG AS THIS SECURITY IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHOM THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND SUBJECT TO THE
RECEIPT BY THE TRUSTEE AND THE SELLER OF A CERTIFICATION OF THE TRANSFEREE, (2)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (3)
IN RELIANCE ON ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND SUBJECT TO THE RECEIPT BY THE TRUSTEE, OF A CERTIFICATION OF
THE TRANSFEREE (SATISFACTORY TO THE TRUSTEE) AND AN OPINION OF COUNSEL
(SATISFACTORY TO THE TRUSTEE AND THE SELLER) TO THE EFFECT THAT SUCH TRANSFER IS
IN COMPLIANCE WITH THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND IN COMPLIANCE
WITH THE TRANSFER REQUIREMENTS SET FORTH IN SECTION 3.4 OF THE TRUST AGREEMENT.
IN NO EVENT SHALL THIS SECURITY BE TRANSFERRED TO AN EMPLOYEE BENEFIT PLAN,
TRUST ANNUITY OR ACCOUNT SUBJECT TO ERISA OR A PLAN DESCRIBED IN SECTION
4975(E)(1) OF THE CODE, (ANY SUCH PLAN, TRUST OR ACCOUNT BEING REFERRED TO AS AN
"EMPLOYEE PLAN"), A TRUSTEE OF ANY EMPLOYEE PLAN, OR AN ENTITY, ACCOUNT OR OTHER
POOLED INVESTMENT FUND THE UNDERLYING ASSETS OF WHICH INCLUDE OR ARE DEEMED TO
INCLUDE EMPLOYEE PLAN ASSETS BY REASON OF AN EMPLOYEE PLAN'S INVESTMENT IN THE
ENTITY, ACCOUNT OR OTHER POOLED INVESTMENT FUND. INCLUDED WITHIN THE DEFINITION
OF "EMPLOYEE PLANS" ARE, WITHOUT LIMITATION, XXXXX (HR-10) PLANS, IRA's
(INDIVIDUAL RETIREMENT ACCOUNTS OR ANNUITIES) AND OTHER EMPLOYEE BENEFIT PLANS,
SUBJECT TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE.
(e) The Underwriter agrees that it and each of its affiliates will not
offer or sell the Certificates by means of any form of general solicitation or
general advertising, within the meaning of Rule 502(c) under the 1933 Act,
including, but not limited to (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio, or (ii) any seminar or meeting whose attendees have
been invited by any general solicitation or general advertising.
(f) The Underwriter acknowledges that none of the Trust, the Seller or
CPS, nor any person representing the Trust, the Seller or CPS, has made any
representation with respect to the Trust, the Seller, CPS or the offering or
sale of the Certificates, other than the information
13
contained in the Private Placement Memorandum, which has been delivered to it
and upon which it is relying in making its investment decision with respect to
the Certificates. The Underwriter affirms that it has access to such financial
and other information concerning the Trust, the Seller, CPS and the Certificates
as it has deemed necessary in connection with its decision to purchase
Certificates, including an opportunity to ask questions of and request
information from the Trust, the Seller and CPS.
4. COVENANTS OF THE COMPANY, SAMCO AND CPS.
The Company, Samco (if so stated), and CPS (if so stated), covenants and agrees
with the Underwriter that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment thereto, to
become effective as soon as reasonably practicable thereafter or, if the
procedure in Rule 430A is followed, prepare and timely file with the Commission
under Rule 424(b) a Final Prospectus containing information previously omitted
at the time of effectiveness of the Registration Statement in reliance upon Rule
430A. Prior to the termination of the offering of the Notes the Company will not
file any amendment of the Registration Statement or amendment or supplement
(including the Final Prospectus or any Preliminary Final Prospectus) to the Base
Prospectus or any Rule 462(b) Registration Statement unless the Company has
furnished to the Underwriter a copy for its review prior to filing and will not
file any such proposed amendment or supplement to which the Underwriter
reasonably objects and which is not in compliance with the 1933 Act Regulations.
The Company will promptly advise the Underwriter (i) when the Registration
Statement, if not effective at the Execution Time, and any amendment thereto,
shall have become effective; (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule 424(b);
(iii) when, prior to termination of the offering of the Notes, any amendment to
the Registration Statement shall have been filed or become effective; (iv) of
any request by the Commission for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any other additional information; (v)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution of any proceeding for that
purpose; and (vi) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation of any proceeding for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop order or the suspension of
any such qualification and, if issued or suspended, to obtain as soon as
possible the withdrawal thereof.
(b) Prior to the filing thereof with the Commission, the Company will
submit to the Underwriter, for its approval after reasonable notice thereof,
such approval not to be unreasonably withheld or delayed, a copy of any
post-effective amendment to the Registration Statement, any Rule 462(b)
Registration Statement proposed to be filed or a copy of any document proposed
to be filed under the 1934 Act before the termination of the offering of the
14
Notes by the Underwriter if such document would be deemed to be incorporated by
reference into the Registration Statement or Final Prospectus.
(c) The Company will deliver to, or upon the order of, the Underwriter,
from time to time, as many copies of any Preliminary Final Prospectus as the
Underwriter may reasonably request. The Company will deliver to, or upon the
order of, the Underwriter during the period when delivery of a Final Prospectus
is required under the 1933 Act, as many copies of the Final Prospectus, or as
thereafter amended or supplemented, as the Underwriter may reasonably request.
The Company will deliver to, or upon the order of, the Underwriter as many
copies of the Private Placement Memorandum as the Underwriter shall reasonably
request. The Company will deliver to the Underwriter at or before the Closing
Date, two signed copies of the Registration Statement and all amendments thereto
including all exhibits filed therewith, and will deliver to the Underwriter such
number of copies of the Registration Statement (including such number of copies
of the exhibits filed therewith that may reasonably be requested), including
documents filed under the 1934 Act and deemed to be incorporated by reference
therein, and of all amendments thereto, as the Underwriter may from time to time
reasonably request.
(d) The Company will, and will cause the Trust to, comply with the 1933
Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as
to permit the completion of the distribution of the Class A Notes as
contemplated in this Agreement and the Final Prospectus. If during the period in
which a prospectus is required by law to be delivered by the Underwriter or any
dealer in connection with the sale of any Class A Notes, any event shall occur
as a result of which, in the judgment of the Company or in the reasonable
opinion of the Underwriter, it becomes necessary to amend or supplement the
Final Prospectus in order to make the statements therein, in the light of the
circumstances existing at the time the Final Prospectus is delivered to a
purchaser, not misleading, or, if it is necessary at any time to amend or
supplement the Final Prospectus to comply with any law or to file under the 1934
Act any document which would be deemed to be incorporated by reference in the
Registration Statement to comply with the 1933 Act or the 1934 Act, the Company
will promptly notify the Underwriter and will promptly either (i) prepare and
file, or cause to be prepared and filed, with the Commission an appropriate
amendment to the Registration Statement or supplement to the Final Prospectus or
(ii) prepare and file, or cause to be prepared and filed, with the Commission
(at the expense of the Company) an appropriate filing under the 1934 Act which
shall be incorporated by reference in the Final Prospectus so that the Final
Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the Final
Prospectus will comply with applicable law.
(e) Until such time as all of the Certificates have been sold and
issued, if any event shall occur as a result of which it is necessary, in the
opinion of the Underwriter, to amend or supplement the Private Placement
Memorandum in order to correct any untrue statement of a material fact or to
state a material fact necessary in order to make the statements therein, in the
15
light of the circumstances under which they were made, not misleading, the
Seller shall forthwith prepare and furnish, without charge, to the Underwriter a
reasonable number of copies of an amendment of, or supplement to, the Private
Placement Memorandum (in form and substance satisfactory to the Underwriter), so
that, as so amended or supplemented, the Private Placement Memorandum will not
contain an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Until such time as all of the
Certificates have been sold and issued, the Seller will not at any time amend or
supplement the Private Placement Memorandum (i) prior to having furnished the
Underwriter with a copy of the proposed form of the amendment or supplement and
giving the Underwriter and its counsel a reasonable opportunity to review the
same or (ii) in a manner to which the Underwriter or their counsel shall
reasonably object. The Seller, Samco or CPS shall give prompt written notice to
the Underwriter of any event occurring on or prior to the Closing Date,
requiring an amendment of, or a supplement to, the Private Placement Memorandum
under this paragraph.
(f) The Company will cooperate with the Underwriter in endeavoring to
qualify the Securities for sale under the laws of such jurisdictions as the
Underwriter may designate and will maintain such qualifications in effect so
long as required for the distribution of the Securities, except that the Company
will not be obligated to qualify the Securities in any jurisdiction in which
such qualification would require the Company to qualify to do business as a
foreign corporation, file a general or unlimited consent to service of process
or subject itself to taxation in any such jurisdiction to which it is not
subject and will arrange for the determination of the legality of the Securities
for purchase by institutional investors. The Company will, from time to time,
prepare and file such statements, reports, and other documents as are or may be
required to continue such qualifications in effect for so long a period as the
Underwriter may reasonably request for distribution of the Securities.
(g) The Company shall not invest, or otherwise use the proceeds
received by the Company from its sale of the Securities in such a manner as
would require the Company, CPS, Samco or the Trust to register as an investment
company under the 1940 Act.
(h) Until the retirement of the Securities, or until such time as the
Underwriter shall cease to maintain a secondary market in the Securities,
whichever occurs first, the Company will deliver to the Underwriter the annual
statements of compliance and the annual independent certified public
accountant's reports furnished to the Trustee pursuant to the Sale and Servicing
Agreement, as soon as such statements and reports are furnished to the Trustee.
(i) The Company, CPS and Samco shall, from the date hereof through and
including the Closing Date, furnish, or cause to be furnished, or make
available, or cause to be made available, to the Underwriter or its counsel such
additional documents and information regarding each of them and their respective
affairs as the Underwriter may from time to time reasonably request and which
the Company, CPS or Samco possesses or can acquire without unreasonable
16
effort or expense, including any and all documentation requested in connection
with the Underwriter's due diligence efforts regarding information in the
Registration Statement, the Final Prospectus and the Private Placement
Memorandum and in order to evidence the accuracy or completeness of any of the
conditions contained in this Agreement; and all actions taken by the Company,
Samco or CPS to authorize the sale of the Notes and Certificates shall be
reasonably satisfactory in form and substance to the Underwriter.
(j) The Company will cause the Trust to make generally available to
Class A Noteholders as soon as practicable, but no later than sixteen months
after the Effective Date, an earnings statement of the Trust covering a period
of at least twelve consecutive months beginning after such Effective Date and
satisfying the provisions of Section 11(a) of the Act (including Rule 158
promulgated thereunder).
(k) So long as any of the Notes and Certificates are outstanding, the
Company will furnish to the Underwriter copies of all reports or other
communications (financial or otherwise) furnished or made available to
Noteholders, and deliver to the Underwriter during such period, (i) as soon as
they are available, copies of any reports and financial statements filed by or
on behalf of the Trust or the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended, and (ii) such additional
information concerning the business and financial condition of the Company,
Samco and CPS as the Underwriter may from time to time reasonably request.
(l) The Company shall cause its affiliates and any person acting on its
behalf not to, directly or indirectly, make offers or sales of any security
(including, but not limited to the Notes and the Certificates), solicit offers
to buy or but any security (including, but not limited to the Notes and the
Certificates), under circumstances that would require the registration of the
Certificates under the 1933 Act, or to do or cause to be done any other action
that would require such registration.
(m) For so long as any of the Certificates are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the 1933 Act,
(1) the Seller and CPS will provide or cause to be provided to any holder of
Certificates and any prospective Underwriter of Certificates designated by a
holder of such Certificates, upon the reasonable request of such holder or
prospective Underwriter, the information required to be provided to such holder
or prospective Underwriter by Rule 144A(d)(4) under the 1933 Act; and (2) the
Seller and CPS shall take such actions as are necessary, in the opinion of
counsel, to ensure that the safe harbor exemption from the registration
requirements of the 1933 Act under Rule 144A is and will be available for
resales of the Certificates conducted in accordance with Rule 144A.
(n) On or before the Closing Date, the Company and CPS and Samco shall
cause the respective computer records of the Company and CPS and Samco relating
to the Receivables to be marked to show the Trustee's absolute ownership of the
Receivables, and from and after the
17
Closing Date neither the Company nor CPS nor Samco shall take any action
inconsistent with the Trust's ownership of such Receivables, other than as
expressly permitted by the Sale and Servicing Agreement or any other Basic
Document.
(o) To the extent, if any, that the ratings provided with respect to
the Notes and Certificates by either of the Rating Agencies is conditional upon
the furnishing of documents or the taking of any other actions by the Company,
CPS or Samco, CPS shall, or shall cause the Company or Samco to, furnish such
documents and take any such other actions.
(p) On the Closing Date, the Company and CPS shall cause the Insurer to
issue the Policy to the Trustee for the benefit of the holders of the Class A
Notes in form and substance satisfactory to the Underwriter.
(q) The Company or CPS shall file with the Commission (a) within
fifteen days of the issuance of the Notes a current report on Form 8-K setting
forth specific information concerning the Notes and the Receivables to the
extent that such information is not set forth in the Prospectus and (b) a
current report on Form 8-K setting forth all Computational Materials (as defined
below) provided to the Company or CPS by the Underwriter within the applicable
time periods allotted for such filing.
5. [RESERVED]
6. COSTS AND EXPENSES.
The Company and CPS will pay upon receipt of a written request therefor
all costs, expenses and fees incident to the performance of the obligations of
the Company, Samco and CPS under this Agreement and will, jointly and severally,
reimburse the Underwriter for all reasonable out-of-pocket expenses, including
reasonable fees and disbursements of counsel, reasonably incurred in connection
with investigating, marketing and proposing to market the Securities or in
contemplation of performing the Underwriter's obligations hereunder and
including, without limiting the generality of the foregoing, the following: (i)
accounting fees of the Company; (ii) the fees and disbursements of Xxxxx, Brown
& Xxxxx; (iii) the cost of printing and delivering to, or as requested by, the
Underwriter copies of the Registration Statement, Preliminary Final
Prospectuses, the Final Prospectus, the Private Placement Memorandum, this
Agreement, the Blue Sky Survey, if any, and any supplements or amendments
thereto; (iv) the filing fees of the Commission; (v) any fees charged by the
Rating Agencies for rating the Securities; and (vi) the fees and expenses of the
Trustee and the Owner Trustee, including the fees and disbursements of counsel
for the Trustee and counsel for the Owner Trustee, in connection with the
Securities, the Sale and Servicing Agreement and the other Basic Documents to
which the Trustee or the Owner Trustee, as applicable, is a party and the
expenses, including the fees and disbursements of counsel for the Underwriter.
If this Agreement shall not be consummated because the conditions in Section 7
hereof are not satisfied, or because this
18
Agreement is terminated by the Underwriter pursuant to Section 12 hereof, or by
reason of any failure, refusal or inability on the part of the Company, Samco or
CPS to perform any undertaking or satisfy any condition of this Agreement or to
comply with any of the terms hereof on its part to be performed, unless such
failure to satisfy said condition or to comply with said terms be due to the
default or omission of the Underwriter, then the Company, Samco and CPS, jointly
and severally, shall reimburse the Underwriter for reasonable out-of-pocket
expenses, including reasonable fees and disbursements of counsel, reasonably
incurred in connection with investigating, marketing and proposing to market the
Securities or in contemplation of performing their obligations hereunder upon
receipt of a written request therefor; but the Company shall not in any event be
liable to the Underwriter for damages on account of loss of anticipated profits
from the sale by them of the Securities. Except to the extent expressly set
forth in this Section 6, the Underwriter shall be responsible for its own costs
and expenses, including the fees and expenses of its counsel.
7. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITER.
The obligation of the Underwriter to purchase and pay for the
Securities on the Closing Date is subject to the accuracy in all material
respects as of the Closing Date of the representations and warranties of the
Company, CPS and Samco contained herein, to the performance by the Company, CPS
and Samco of their respective covenants and obligations hereunder and to the
following additional conditions precedent:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Underwriter agrees in writing to a later time, the
Registration Statement will become effective not later than (i) 5:30 p.m. New
York City time on the date of determination of the public offering price of the
Notes, if such determination occurred at or prior to 3:00 p.m. New York City
time on such date or (ii) 12:00 noon New York City time on the business day
following the day on which the public offering price of the Notes was
determined, if such determination occurred after 3:00 p.m. New York City time on
such date; if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
shall have been filed within the applicable time period prescribed for such
filing by Rule 424(b), and any request of the Commission for additional
information (to be included in the Registration Statement or otherwise) shall
have been disclosed to the Underwriter and complied with to its reasonable
satisfaction. No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been taken or, to the knowledge of the
Company, shall be contemplated by the Commission and no injunction, restraining
order, or order of any nature by a Federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would prevent
the issuance of the Securities.
(b) On or prior to the date of this Agreement and on or prior to the
Closing Date, the Underwriter shall have received a letter or letters, dated as
of October 16, 1997, and as of the
19
Closing Date, respectively, of KPMG Peat Marwick LLP, Certified Public
Accountants, substantially in the form of the drafts to which the Underwriter
has previously agreed and otherwise in form and substance satisfactory to the
Underwriter and its counsel.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Insurer, the Company, CPS or any Affiliate of the Company or CPS which, in
the judgment of the Underwriter, materially impairs the investment quality of
the Notes and Certificates or the ability of CPS to act as Servicer or (ii) any
downgrading in the rating of the claims-paying ability of the Insurer or of any
debt securities or preferred stock of the Company, CPS or any Affiliate thereof
by any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the 1933 Act), or any public announcement that any
such organization has under surveillance or review its rating of the
claims-paying ability of the Insurer or of any debt securities or preferred
stock of the Company, CPS or any Affiliate thereof (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of trading of
any securities of the Company or CPS or any Affiliate of the Company or CPS on
any exchange or in the over-the-counter market; (iv) any banking moratorium
declared by Federal, New York, Texas or California authorities; or (v) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity, emergency or change in financial markets if, in the
judgment of the Underwriter, the effect of any such outbreak, escalation,
declaration, calamity, emergency or change makes it impractical or inadvisable
to market the Securities on the terms and in the manner set forth in the Final
Prospectus.
(d) The Company, CPS and Samco shall have furnished the Underwriter
with such number of conformed copies of such opinions, certificates, letters and
documents as it may reasonably request.
(e) On the Closing Date, each of the Basic Documents, the Securities
and the Certificates shall have been duly authorized, executed and delivered by
the parties thereto, shall be in full force and effect and no default shall
exist thereunder, and the Trustee shall have received a fully executed copy
thereof or, with respect to the Notes, a conformed copy thereof. The Basic
Documents, the Notes and the Certificates shall be substantially in the forms
heretofore provided to the Underwriter.
(f) The Underwriter shall have received evidence satisfactory to the
Underwriter that the Notes have been rated "Aaa" by Xxxxx'x and "AAA" by
Standard & Poor's and that the Certificates have been rated "BB" by Standard and
Poor's.
20
(g) The Underwriter shall have received from Xxxxx, Brown & Xxxxx,
special counsel for CPS, Samco and the Company, opinions dated the Closing Date,
addressed to the Underwriter, in a form satisfactory to the Underwriter.
(h) The Underwriter shall have received from Xxxxx, Brown & Xxxxx,
special Federal tax counsel for the Company, an opinion dated the Closing Date,
addressed to the Underwriter and in a form satisfactory to the Underwriter, with
respect to the status of the Trust for federal income tax purposes.
(i) The Underwriter shall have received from Brown & Wood llp, an
opinion dated the Closing Date, addressed to the Underwriter, with respect to
the validity of the Notes and Certificates and such other related matters as the
Underwriter shall require and the Company, Samco or CPS shall have furnished or
caused to be furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(j) The Underwriter shall have received from counsel to the Trustee,
the Standby Servicer and the Collateral Agent (which counsel shall be reasonably
acceptable to the Underwriter), an opinion addressed to the Underwriter dated
the Closing Date, in form and substance satisfactory to the Underwriter and its
counsel.
(k) The Underwriter shall have received from counsel to the Owner
Trustee, which counsel shall be reasonably acceptable to the Underwriter, an
opinion addressed to the Underwriter, dated the Closing Date, in form and
substance satisfactory to the Underwriter and its counsel.
(l) The Underwriter shall have received from special Delaware counsel
to the Trust, which counsel shall be reasonably acceptable to the Underwriter,
an opinion addressed to the Underwriter, dated the Closing Date, in form and
substance satisfactory to the Underwriter and its counsel.
(m) The Underwriter shall have received from counsel to the Insurer,
which counsel shall be reasonably acceptable to the Underwriter, an opinion
addressed to the Underwriter, dated the Closing Date, in form and substance
satisfactory to the Underwriter and its counsel.
(n) At the Closing Date, the Underwriter shall have received any and
all opinions of counsel to the Company and CPS supplied to the Rating Agencies
and the Insurer relating to, among other things, the interest of the Trustee in
the Receivables and the other Trust Property and the proceeds thereof and
certain monies due or to become due with respect thereto, certain bankruptcy
issues and certain matters with respect to the Notes and Certificates. Any such
opinions shall be addressed to the Underwriter or shall indicate that the
Underwriter may rely on such opinions as though they were addressed to the
Underwriter, and shall be dated the Closing Date.
21
(o) At the Closing Date, the Company, CPS and Samco shall have
furnished to the Underwriter a certificate, dated the Closing Date, of the
President, the Chief Financial Officer or any Vice President of the Company, CPS
or Samco, as the case may be, in which each such officer shall state that: (i)
the representations and warranties of the Company, CPS or Samco, as applicable,
in this Agreement are true and correct on and as of the Closing Date; (ii) the
Company, CPS or Samco, as applicable, has complied with all agreements and
satisfied all conditions on its part required to be performed or satisfied
hereunder and under each of the other Basic Documents at or prior to the Closing
Date; (iii) the representations and warranties of the Company, CPS or Samco, as
applicable, in each of the Basic Documents are true and correct as of the dates
specified therein; (iv) with respect to the certificate delivered by CPS, the
Registration Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement has been issued, and
no proceedings for such purpose have been taken or are, to his or her knowledge,
contemplated by the Commission; (v) with respect to the certificates delivered
by CPS, Samco and the Company, he or she has carefully examined the Registration
Statement, the Final Prospectus and the Private Placement Memorandum and, in his
or her opinion, as of the Effective Date of the Registration Statement, the
statements contained in the Registration Statement, as of the date of the Final
Prospectus, the statements contained in the Final Prospectus, and, as of the
date of Private Placement Memorandum, the statements contained in the Private
Placement Memorandum were true and correct, and as of the Closing Date the
Registration Statement, the Final Prospectus and the Private Placement
Memorandum do not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, and since
the Effective Date of the Registration Statement, no event has occurred with
respect to the Company, CPS or Samco which should have been set forth in a
supplement to or an amendment of the Final Prospectus or the Private Placement
Memorandum which has not been so set forth in such supplement or amendment; and
(vi) with respect to the certificate delivered by the Company, Samco and CPS,
subsequent to the respective dates as of which information is given in the
Registration Statement, and the Final Prospectus and the Private Placement
Memorandum, there has been no material adverse change, or any development with
respect to the Company, CPS or Samco which could reasonably be expected to
result in a material adverse change, in or affecting particularly the business
or properties of the Trust, the Company, CPS or Samco except as contemplated by
the Final Prospectus and the Private Placement Memorandum or as described in
such certificate.
(p) The Underwriter shall have received evidence satisfactory to the
Underwriter that the Insurer shall have executed and issued the Policy to the
Trustee for the benefit of the Class A Noteholders in form and substance
satisfactory to the Underwriter.
(q) The Underwriter shall have received evidence satisfactory to it
that, on or before the Closing Date, the Financing Statements have been filed in
(i) the office of the Secretary of State of California reflecting the assignment
of the interest of CPS in the CPS Receivables included in the Receivables and
the related other Trust Property and the proceeds thereof to the
22
Company, (ii) the office of the Secretary of State of Texas reflecting the
assignment of the interest of Xxxxx in the Samco Receivables included in the
Receivables and the related other Trust Property and the proceeds thereof to the
Company, (iii) the office of the Secretary of State of California reflecting the
transfer of the interest of the Company in the Receivables and the related other
Trust Property and the proceeds thereof to the Trust and (iv) the office of the
Secretary of State of Delaware reflecting the transfer of the interest of the
Trust in the Receivables and the related other Trust Property and the proceeds
thereof to the Trustee.
(r) All proceedings in connection with the transactions contemplated by
this Agreement, the Sale and Servicing Agreement and each of the other Basic
Documents and all documents incident hereto or thereto shall be satisfactory in
form and substance to the Underwriter.
(s) The Company shall have furnished to the Underwriter such further
certificates and documents confirming the representations and warranties,
covenants and conditions contained herein and related matters as the Underwriter
may reasonably have requested.
(t) You shall have received a fully executed Insurance Agreement by and
among the Seller, CPS and Financial Security Assurance Inc., dated as of October
17, 1997 (the "Insurance Agreement"), and all representations and warranties
thereunder or made pursuant thereto shall be true and correct, and the Seller
shall have performed its obligations thereunder.
(u) Financial Security Assurance Inc. shall have delivered a fully
executed Indemnification Agreement by and among the Seller, CPS, Greenwich
Capital Markets, Inc. and Financial Security Assurance Inc., dated as of October
16, 1997 (the "Indemnification Agreement"), agreeing to hold you harmless
against any losses, claims, damages, or liabilities, joint or several, to which
you may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall have agreed to reimburse you for any legal or other
expenses reasonably incurred by you in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company or you by Financial Security Assurance Inc. for use specifically
therein. All representations and warranties under the Indemnification Agreement
or made pursuant thereto shall be true and correct, and the Seller shall have
performed its obligations thereunder.
23
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects reasonably satisfactory to the Underwriter and to Brown & Wood
llp, counsel for the Underwriter.
If any of the conditions hereinabove provided for in this Section 7
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriter hereunder may be terminated by the
Underwriter by notifying the Company of such termination in writing or by
telegram at or prior to the Closing Date. In such event, the Company and the
Underwriter shall not be under any obligation to each other (except to the
extent provided in Sections 6 and 9 hereof).
8. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company to sell and deliver the portion of the
Notes and Certificates required to be delivered as and when specified in this
Agreement are subject to the condition that, at the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and in effect or proceedings therefor initiated or threatened.
9. INDEMNIFICATION.
(a) The Company and CPS, jointly and severally, agree to indemnify and
hold harmless the Underwriter, its directors, officers, employees and agents and
each person, if any, who controls the Underwriter within the meaning of the 1933
Act or the 1934 Act, against any losses, claims, damages or liabilities to which
the Underwriter or any such other person may become subject under the 1933 Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Computational Materials, the Base Prospectus, any
Preliminary Final Prospectus, the Final Prospectus, the Private Placement
Memorandum or any information provided by the Company, Samco or CPS to any
holder or prospective purchaser of Certificates pursuant to Section 4(m) or any
amendment or supplement thereto (other than information contained therein under
the heading "the Insurer" and information incorporated by reference therein), or
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances under which they were made; and will reimburse
the Underwriter and each such person within 30 days of presentation of a written
request therefor for any legal or other expenses reasonably incurred by the
Underwriter in connection with investigating or defending any such loss, claim,
damage or liability, action or proceeding or in responding to a subpoena or
governmental inquiry related to the offering of the Notes, whether or not the
Underwriter or such person is a party to any action or proceeding; provided,
however, that neither the Company nor CPS will be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement, or omission or alleged
omission made in
24
the Registration Statement, the Computational Materials, the Base Prospectus,
any Preliminary Final Prospectus, the Final Prospectus, the Private Placement
Memorandum, or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company or CPS, as the case
may be, by, through or on behalf of the Underwriter specifically for use in the
preparation thereof; provided, further, that neither the Company nor CPS will be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement, or omission or alleged omission made in the Computational Materials
(as defined below), except to the extent expressly provided in (b) below. This
indemnity agreement will be in addition to any liability which the Company or
CPS may otherwise have. The indemnity agreement of the Company and CPS in this
Agreement is subject to the condition that, insofar as it relates to any untrue
statement, alleged untrue statement, omission or alleged omission made in the
Registration Statement, the Base Prospectus, any Preliminary Final Prospectus,
the Final Prospectus, the Private Placement Memorandum or any amendment or
supplement thereto, such indemnity agreement shall not inure to the benefit of
the Underwriter if the Underwriter failed to send or give a copy of the Final
Prospectus or the Private Placement Memorandum, as applicable (as amended or
supplemented, if the Company or CPS, as the case may be, shall have furnished
any amendment or supplement thereto to the Underwriter, which corrected such
untrue statement or omission that is the basis of the loss, liability, claim,
damage or expense for which indemnification is sought) to the person asserting
any such loss, liability, claim, damage or expense at such time as the Final
Prospectus, the Private Placement Memorandum as so amended or supplemented, was
required under the 1933 Act to be delivered to such person.
(b) (i) The Underwriter will indemnify and hold harmless each of the
Company and CPS, each of their directors, officers, employees and agents and
each person, if any, who controls the Company within the meaning of the 1933 Act
or the 1934 Act, to the same extent as the foregoing indemnity from each of the
Company and CPS to the Underwriter, its directors, officers, employees and
agents and each person who controls any the Underwriter, but only with respect
to untrue statements or omissions or alleged untrue statements or omissions made
in the Registration Statement, the Base Prospectus, any Preliminary Final
Prospectus, the Final Prospectus, the Private Placement Memorandum, or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company or CPS, as the case may be, by, through or
on behalf of the Underwriter specifically for use in the preparation of the
Registration Statement, the Base Prospectus, any Preliminary Final Prospectus,
the Private Placement Memorandum, the Final Prospectus, or any amendment or
supplement thereto. This indemnity agreement will be in addition to any
liability which the Underwriter may otherwise have. The Company and the
Underwriter acknowledge and agree that the only information furnished or to be
furnished by the Underwriter to the Company for inclusion in the Registration
Statement, the Base Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or any amendments or supplements thereto, consists of the
information set forth in the last paragraph on the front cover page concerning
the terms of the offering by the
25
Underwriter (insofar as such information relates to the Underwriter), and the
information under the caption "Underwriting" in the Final Prospectus.
(ii) The Underwriter agrees to indemnify and hold harmless the Company,
CPS, the respective officers, directors, employees and agents of any such party,
and each person who controls the Company or CPS within the meaning of the 1933
Act or the 1934 Act against any losses, claims, damages or liabilities to which
such person may become subject under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (a) any untrue statement or alleged
untrue statement of any material fact contained in the Computational Materials
(as defined below) provided by such indemnifying Underwriter or (b) the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances in which they were made, not misleading (except, in each
case, to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission arises from a misstatement or omission in the
Company Provided Information); and will reimburse each such party within 30 days
of written request therefor for any legal or other expenses reasonably incurred
by such person in connection with investigating or defending any such loss,
claim, damage or liability, action or proceeding or in responding to a subpoena
or governmental inquiry related thereto, whether or not such person is a party
to any action or proceeding. The obligations of the Underwriter under this
subsection (ii) shall be in addition to any other liability which the
Underwriter may otherwise have. For purposes hereof, the term "Computational
Materials" means information provided by the Underwriter to a prospective
purchaser of Notes, which information is not part of the Prospectus. For
purposes hereof, the term "Company Provided Information" means the information
contained in the data tape delivered by CPS to the Underwriter on or about
October 1, 1997 containing information with respect to the Receivables, any
information contained in or derived from the Prospectus Supplement, or any other
information furnished to the Underwriter by or on behalf of the Company or CPS
concerning the Receivables or the Trust.
(iii) The Underwriter shall, no later than the date on which the
Prospectus is required to be filed pursuant to Rule 424, provide to CPS for
filing with the Commission on Form 8-K a copy of any Computational Materials
delivered by the Underwriter to any prospective purchaser of Notes.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 9, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. The failure to give such notice shall not
relieve the indemnifying party or parties from any liability which it or they
may have to the indemnified party for indemnity or contribution or otherwise
than on account of the provisions of Section 9(a) or (b), except and only to the
extent such omission so to notify shall have materially prejudiced the
indemnifying party under Section 9(a) or (b). In case any such
26
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party
and shall pay as incurred the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred (or within 30 days of
presentation of an invoice) the fees and expenses of the counsel retained by the
indemnified party in the event (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(iii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iv) the indemnifying party shall
have failed to assume the defense and employ counsel acceptable to the
indemnified party within a reasonable period of time after notice of
commencement of the action. It is understood that the indemnifying party shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated in
writing by the Underwriter in the case of parties indemnified pursuant to
Section 9(a) and by the Company in the case of parties indemnified pursuant to
Section 9(b). The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. In addition, the
indemnifying party will not, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld or delayed),
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding of which indemnification may be sought
hereunder (whether or not any indemnified party is an actual or potential party
to such claim, action or proceeding) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action or proceeding.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 9(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company and CPS
on the one hand and the Underwriter on the other from the offering of the
Securities. If, however, the allocation provided by the immediately preceding
27
sentence is not permitted by applicable law then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and CPS on the one hand and the Underwriter on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and CPS on the one hand and the Underwriter on
the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriter.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and CPS on the one hand or the Underwriter on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, CPS and the Underwriter agree that it would not be just
and equitable if contributions pursuant to this Section 9(d) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 9(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 9(d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim, subject to the limitations
set forth above. Notwithstanding the provisions of this Section 9(d), (i) the
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Securities purchased by
the Underwriter and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) In any proceeding relating to the Registration Statement, the Base
Prospectus, any Preliminary Final Prospectus, the Final Prospectus, the Private
Placement Memorandum, or any supplement or amendment thereto, each party against
whom contribution may be sought under this Section 9 hereby consents to the
jurisdiction of any court having jurisdiction over any other contributing party,
agrees that process issuing from such court may be served upon it by any other
contributing party and consents to the service of such process and agrees that
any other contributing party may join it as an additional defendant in any such
proceeding in which such other contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
obligations of the Company and CPS pursuant to Section 6, the
28
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of each of the Company and CPS set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of the Underwriter, the Company or CPS,
their respective directors, officers, employees or agents or any persons
controlling the Underwriter or the Company, (ii) acceptance of any Securities
and payment thereof or hereunder, and (iii) any termination of this Agreement. A
successor to the Underwriter, the Company or CPS, their respective directors,
officers, employees or agents, or any person controlling the Underwriter, the
Company or CPS, shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Section 9.
10. [RESERVED]
11. NOTICES.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or telegraphed
and confirmed as follows:
if to the Underwriter, to the following address:
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
if to the Company, at the following address:
CPS Receivables Corp.
0 Xxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Xx.
Facsimile No.: (000) 000-0000;
or, if sent to CPS at the following address:
Consumer Portfolio Services, Inc.
0 Xxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Xx.
Facsimile No.: (000) 000-0000
29
12. TERMINATION.
This Agreement may be terminated by the Underwriter by notice to the
Company as follows:
(a) at any time prior to the Closing Date, if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement, the Final Prospectus and the Private Placement
Memorandum, any material adverse change or any development involving a
prospective material adverse change in the business, properties, results of
operations, financial condition or business prospects of the Insurer, CPS, Samco
or the Company, whether or not arising in the ordinary course of business, (ii)
any outbreak or escalation of hostilities or declaration of war or national
emergency or other national or international calamity or crisis or change in
economic or political conditions if the effect of such outbreak, escalation,
declaration, emergency, calamity, crisis or change on the financial markets of
the United States would, in the Underwriter's reasonable judgment, make it
impracticable to market the Notes or the Certificates or to enforce contracts
for the sale of the Notes or Certificates, (iii) any suspension of trading in
securities generally on the New York Stock Exchange or the American Stock
Exchange or limitation on prices (other than limitations on hours or numbers of
days of trading) for securities on either such Exchange, (iv) the enactment,
publication, decree or other promulgation of any statute, regulation, rule or
order of any court or other governmental authority which in the Underwriter's
reasonable opinion materially and adversely affects or may materially and
adversely affect the business or operations of the Insurer, CPS or the Company,
(v) declaration of a banking moratorium by United States, Texas, California or
New York State authorities, (vi) any downgrading or the giving of notice of any
intended or potential downgrading in the rating of the Insurer's claims-paying
ability or of CPS's or the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the 1934 Act), (vii) the suspension of trading of the Common Stock
by the Commission on the New York Stock Exchange or (viii) the taking of any
action by any governmental body or agency in respect of its monetary or fiscal
affairs which in the Underwriter's reasonable opinion has a material adverse
effect on the securities markets in the United States; or
(b) as provided in Section 7 of this Agreement.
13. SUCCESSORS.
This Agreement has been and is made solely for the benefit of the
Underwriter, CPS, Samco and the Company and their respective successors,
executors, administrators, heirs and assigns, and the respective affiliates,
officers, directors, employees, agents and controlling persons referred to
herein, and no other person will have any right or obligation hereunder;
provided, however, that the initial purchaser of any Notes or Certificates from
the Underwriter
30
shall be deemed a third party beneficiary to this Agreement and shall enjoy all
of the rights and benefits of the Underwriter hereunder.
14. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement, the obligations of the Company and CPS under
Section 6 and the representations, warranties and covenants in this Agreement
shall remain in full force and effect regardless of (a) any termination of this
Agreement, (b) any investigation made by or on behalf of the Underwriter or the
Company, their respective directors, officers, employees or agents or any
controlling person of the Underwriter or the Company indemnified herein and (c)
delivery of and payment for the Securities under this Agreement.
The Underwriter agrees that, prior to the date which is one year and
one day after the payment in full of all securities issued by the Company or by
a trust for which the Company was the depositor, which securities were rated by
any nationally recognized statistical rating organization, it will not institute
against, or join any other person in instituting against, the Company any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any Federal or state bankruptcy or similar law.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York without regard to the conflict of laws
provisions thereof. With respect to any claim arising out of this Agreement (i)
each party irrevocably submits to the exclusive jurisdiction of the courts of
the State of New York and the United States District Court for the Southern
District of New York, and (ii) each party irrevocably waives (1) any objection
which it may have at any time to the laying of venue of any suit, action or
proceeding arising out of or relating hereto brought in any such court, (2) any
claim that any such suit, action or proceeding brought in any such court has
been brought in any inconvenient forum and (3) the right to object, with respect
to such claim, suit, action or proceeding brought in any such court, that such
court does not have jurisdiction over such party. To the extent permitted by
applicable law, the Underwriter, the Company, Samco and CPS irrevocably waive
all right of trial by jury in any action, proceeding or counterclaim arising out
of or in connection with this Agreement or any matter arising hereunder.
This Agreement supersedes all prior agreements and understandings
relating to the subject matter hereof.
31
Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought.
The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof.
Any provision of this Agreement which is prohibited, unenforceable or
not authorized in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, unenforceability or
non-authorization without invalidating the remaining provisions hereof or
affecting the validity, enforceability or legality of such provision in any
other jurisdiction.
[Rest of page intentionally left blank.]
32
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the
Underwriter in accordance with its terms.
Very truly yours,
CPS RECEIVABLES CORP.
By:
Name:
Title:
CONSUMER PORTFOLIO SERVICES, INC.
By:
Name:
Title:
SAMCO ACCEPTANCE CORP.
By:
Name:
Title:
33
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
GREENWICH CAPITAL MARKETS, INC.
By:
Name:
Title:
34
SCHEDULE I
Initial Principal Amount of the
Notes and Certificates to be Purchase
Underwriter Purchased Price
----------- ---------- ------
Greenwich Capital Markets, Class A-1 Notes: $54,260,000.00 $54,097,220.00
Inc. Class A-2 Notes: $46,307,598.60 $46,161,440.24
Total Notes: $100,567,598.60 $100,258,660.24
Certificates: $5,293,031.51 $5,187,170.38
Total Certificates: $5,293,031.51 $5,187,170.38
35
