[EXECUTION COPY]
SUBSEQUENT TRANSFER AGREEMENT
TRANSFER No. 1 of Subsequent Receivables pursuant to a Sale and
Servicing Agreement, dated as of December 1, 1998, among THE CPS AUTO
RECEIVABLES TRUST 1998-4, a Delaware business trust (the "Issuer"), CPS
RECEIVABLES CORP., a California corporation (the "Seller"), CONSUMER PORTFOLIO
SERVICES, INC. a California corporation (the "Servicer"), CSC LOGIC/MSA LLP
d/b/a LOAN SERVICING ENTERPRISE, as Backup Servicer (the "Backup Servicer") and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association, in
its capacity as Trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS pursuant to the Sale and Servicing Agreement, the Seller wishes
to convey to the Issuer the Subsequent Receivables listed on Schedule A hereto;
and
WHEREAS the Issuer is willing to accept such conveyance subject to the
terms and conditions hereof;
NOW, THEREFORE, the Issuer, the Seller, the Servicer, the Backup
Servicer and the Trustee hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used herein shall have the
meanings ascribed to them in the Sale and Servicing Agreement unless otherwise
defined herein.
"Subsequent Cutoff Date" shall mean, with respect to the Subsequent
Receivables conveyed hereby, December 14, 1998.
"Subsequent Transfer Date" shall mean, with respect to the Subsequent
Receivables conveyed hereby, December 18, 1998.
SECTION 2. Schedule of Receivables. Annexed hereto is a supplement to
Schedule A to the Sale and Servicing Agreement listing the Receivables that
constitute the Subsequent Receivables to be conveyed pursuant to this Subsequent
Transfer Agreement on the Subsequent Transfer Date.
SECTION 3. Conveyance of Subsequent Receivables. In consideration of
the Issuer's delivery to or upon the order of the Seller of $34,500,000.00, the
Seller does hereby sell, transfer, assign, set over and otherwise convey to the
Issuer, without recourse (except as expressly provided in the Sale and Servicing
Agreement), all right, title and interest of the Seller in and to:
(a) all right, title and interest of the Seller in and to the
Subsequent Receivables listed in Schedule A to this Subsequent Transfer
Agreement and all monies received thereunder after the Subsequent
Cutoff Date and all Net Liquidation Proceeds received with respect to
such Subsequent Receivables after the Subsequent Cutoff Date;
(b) all right, title and interest of the Seller in and to the
security interests in the Financed Vehicles granted by Obligors
pursuant to the Subsequent Receivables and any other interest of the
Seller in such Financed Vehicles, including, without limitation, the
certificates of title or, with respect to such Financed Vehicles in the
State of Michigan, all other evidence of ownership with respect to such
Financed Vehicles;
(c) all right, title and interest of the Seller in and to any
proceeds from claims on any physical damage, credit life and credit
accident and health insurance policies or certificates relating to the
Financed Vehicles securing the Subsequent Receivables or the Obligors
thereunder;
(d) all right, title and interest of the Seller in and to the
Subsequent Purchase Agreements, including a direct right to cause CPS
to purchase Receivables from the Trust under certain circumstances;
(e) all right, title and interest of the Seller in and to
refunds for the costs of extended service contracts with respect to
Financed Vehicles securing Subsequent Receivables, refunds of unearned
premiums with respect to credit life and credit accident and health
insurance policies or certificates covering an Obligor or Financed
Vehicle under a Subsequent Receivable or his or her obligations with
respect to a Financed Vehicle and any recourse to Dealers for any of
the foregoing;
(f) the Receivable File related to each Subsequent Receivable;
(g) the proceeds of any and all of the foregoing;
(h) all present and future claims, demands, causes and choices
in action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind
and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in
the proceeds of any of the foregoing.
It is the intention of the Seller that the transfer and assignment
contemplated by this Subsequent Transfer Agreement shall constitute a sale of
the Subsequent Receivables and Other Conveyed Property from the Seller to the
Issuer and the beneficial interest in and title to the
Subsequent Receivables and the Other Conveyed Property shall not be part of the
Seller's estate in the event of the filing of a bankruptcy petition by or
against the Seller under any bankruptcy law. In the event that, notwithstanding
the intent of the Seller, the transfer and assignment contemplated hereby is
held not to be a sale, this Subsequent Transfer Agreement shall constitute a
grant of a security interest in the property referred to in this Section 3 for
the benefit of the Securityholders and the Note Insurer.
SECTION 4. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Issuer as of the date of this Agreement
and as of the Subsequent Transfer Date that:
(a) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of California, with power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Subsequent Receivables and the related Other
Conveyed Property transferred to the Trust.
(b) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall
require such qualifications.
(c) Power and Authority. The Seller has the power and
authority to execute and deliver this Subsequent Transfer Agreement and
the Basic Documents to which it is a party and to carry out its terms
and their terms, respectively; the Seller has full power and authority
to sell and assign the Subsequent Receivables and the related Other
Conveyed Property to be sold and assigned to and deposited with the
Trust by it and has duly authorized such sale and assignment to the
Trust by all necessary corporate action; and the execution, delivery
and performance of this Subsequent Transfer Agreement and the Basic
Documents to which the Seller is a party have been duly authorized by
the Seller by all necessary corporate action.
(d) Valid Sale, Binding Obligations. This Subsequent Transfer
Agreement effects a valid sale, transfer and assignment of the
Subsequent Receivables and the related Other Conveyed Property,
enforceable against the Seller and creditors of and purchasers from the
Seller; and this Subsequent Transfer Agreement and the Basic Documents
to which the Seller is a party, when duly executed and delivered, shall
constitute legal, valid and binding obligations of the Seller
enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and by equitable limitations on the availability of specific
remedies,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by this Subsequent Transfer Agreement and the Basic
Documents and the fulfillment of the terms of this Subsequent Transfer
Agreement and the Basic Documents shall not conflict with, result in
any breach of any of the terms and provisions of or constitute (with or
without notice, lapse of time or both) a default under the certificate
of incorporation or by-laws of the Seller, or any indenture, agreement,
mortgage, deed of trust or other instrument to which the Seller is a
party or by which it is bound, or result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement, mortgage, deed of trust or other instrument,
other than the Basic Documents, or violate any law, order, rule or
regulation applicable to the Seller of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its
properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the Seller's knowledge, threatened against the Seller,
before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over the
Seller or its properties (A) asserting the invalidity of this
Subsequent Transfer Agreement, the Securities or any of the Basic
Documents, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Subsequent Transfer Agreement or any
of the Basic Documents, (C) seeking any determination or ruling that
might materially and adversely affect the performance by the Seller of
its obligations under, or the validity or enforceability of, this
Subsequent Transfer Agreement or any of the Basic Documents, or (D)
relating to the Seller and which might adversely affect the federal or
state income, excise, franchise or similar tax attributes of the
Securities.
(g) No Consents. No consent, approval, authorization or order
of or declaration or filing with any governmental authority is required
for the issuance or sale of the Securities or the consummation of the
other transactions contemplated by this Agreement, except such as have
been duly made or obtained.
(h) Tax Returns. The Seller has filed on a timely basis all
tax returns required to be filed by it and paid all taxes, to the
extent that such taxes have become due.
(i) Chief Executive Office. The chief executive office of the
Seller is at 00000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000.
(j) Principal Balance. The aggregate Principal Balance of the
Subsequent Receivables listed on the supplement to Schedule A annexed
hereto and conveyed to the Issuer pursuant to this Subsequent Transfer
Agreement as of the Subsequent Cutoff Date is $34,500,000.00.
SECTION 5. Conditions Precedent. The obligation of the Issuer to
acquire the Receivables hereunder is subject to the satisfaction, on or prior to
the Subsequent Transfer Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Seller in Section 4 of this
Subsequent Transfer Agreement and with respect to the Subsequent
Receivables in Section 3.1 of the Sale and Servicing Agreement shall be
true and correct as of the date of this Agreement and as of the
Subsequent Transfer Date.
(b) Sale and Servicing Agreement Conditions. Each of the
conditions set forth in Section 2.2(b) of the Sale and Servicing
Agreement shall have been satisfied.
(c) Additional Information. The Seller shall have delivered to
the Issuer such information as was reasonably requested by the Issuer
to satisfy itself as to (i) the accuracy of the representations and
warranties set forth in Section 4 of this Agreement and with respect to
the Subsequent Receivables in Section 3.1 of the Sale and Servicing
Agreement and (ii) the satisfaction of the conditions set forth in this
Section 5.
SECTION 6. Acceptance of Receivable Files by Trustee. The Trustee
acknowledges receipt of files which the Seller has represented are the
Receivable Files for the Subsequent Receivables. The Trustee has reviewed such
Receivable Files and has determined that it has received a file for each
Subsequent Receivable identified in Schedule A to this Subsequent Transfer
Agreement. The Trustee declares that it holds and will continue to hold such
files and any amendments, replacements or supplements thereto and all other
Trust Assets as Trustee in trust for the use and benefit of all present and
future Securityholders.
SECTION 7. Ratification of Agreement. As supplemented by this
Agreement, the Sale and Servicing Agreement is in all respects ratified and
confirmed and the Sale and Servicing Agreement as so supplemented by this
Agreement shall be read, taken and construed as one and the same instrument.
SECTION 8. Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
SECTION 9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Issuer, the Seller, Servicer and the Backup
Servicer have caused this Agreement to be duly executed and delivered by their
respective duly authorized officers as of the day and year first above written.
CPS AUTO RECEIVABLES
TRUST 1998-4
By BANKERS TRUST (DELAWARE),
not in its individual capacity, but solely as
Owner Trustee on behalf of the Trust
By ___________________________
Name:
Title:
CPS RECEIVABLES CORP., as Seller
By ___________________________
Name:
Title:
CONSUMER PORTFOLIO SERVICES, INC.,
as Servicer
By ___________________________
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By ___________________________
Name:
Title:
CSC LOGIC/MSA LLP d/b/a LOAN SERVICING
ENTERPRISE, as Backup Servicer
By ___________________________
Name:
Title:
