EXHIBIT 10.34
EXECUTION COPY
AMENDMENT NO. 1
dated as of April 18, 2002
among
CPS WAREHOUSE TRUST, as
Purchaser,
CONSUMER PORTFOLIO SERVICES, INC., as
Seller and Servicer
SYSTEMS & SERVICES TECHNOLOGIES, INC., as
Backup Servicer
and
BANK ONE TRUST COMPANY, N.A., as
Standby Servicer and Trustee
to
Sale and Servicing Agreement
dated as of March 7, 2002
AMENDMENT NO. 1 TO SALE AND SERVICING AGREEMENT
AMENDMENT NO. 1, dated as of April 18, 2002 (the "AMENDMENT") among CPS
WAREHOUSE TRUST, a Delaware business trust (the "PURCHASER"), CONSUMER PORTFOLIO
SERVICES, INC., a California corporation (in its capacities as Seller, the
"SELLER" and as Servicer, the "SERVICER," respectively), SYSTEMS & SERVICES
TECHNOLOGIES, INC., a Delaware corporation ("SST"), as Backup Servicer, and BANK
ONE TRUST COMPANY, N.A., a national banking association, (in its capacities as
Standby Servicer, the "STANDBY SERVICER" and as Trustee, the "TRUSTEE,"
respectively) to the Sale and Servicing Agreement, dated as of March 7, 2002, as
the same may be further amended, amended and restated, supplemented or otherwise
modified from time to time in accordance with its terms (the "SALE AND SERVICING
AGREEMENT").
RECITALS
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WHEREAS, the Purchaser, the Seller, the Servicer, SST, the Standby
Servicer and the Trustee (collectively, the "AMENDING PARTIES") have entered
into the Sale and Servicing Agreement and the Amending Parties desire to amend
the Sale and Servicing Agreement in certain respects as provided below with the
consent of the Noteholder and the Controlling Party.
AGREEMENTS
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In consideration of the premises, and for other good and valuable
consideration, the adequacy, receipt and sufficiency of which are hereby
acknowledged, the Amending Parties agree as follows:
ARTICLE I
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DEFINITIONS
SECTION 1.1. DEFINED TERMS. Unless defined in this Amendment,
capitalized terms used in this Amendment (including in the Preamble and the
Recitals) shall have the meaning given such terms in ANNEX A to the Sale and
Servicing Agreement, as identifiable from the context in which such term is
used.
ARTICLE II
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AMENDMENT
SECTION 2.1. AMENDMENTS TO ANNEX A. ANNEX A to the Sale and Servicing
Agreement is hereby amended as follows:
(a) The first line of the following definition is hereby
deleted in its entirety and replaced with the following:
""CONCENTRATION LIMITS" means with respect to Eligible
Receivables other than Mercury Receivables:".
(b) The definition of "EXCESS CONCENTRATION AMOUNT" is hereby
amended by inserting the phrase "(other than Mercury Receivables)" after the
phrase "Aggregate Principal Amount of Eligible Receivables".
(c) The definition of "ADVANCE RATE" is hereby deleted in its
entirety and replaced with the following:
"ADVANCE RATE" means either the CPS Receivables Advance Rate
or the Mercury Receivables Advance Rate, as applicable.
(d) The following definitions are hereby inserted in
alphabetical order:
""CPS RECEIVABLES ADVANCE RATE" as of any day means (a)76%
MINUS (b) the Advance Rate Reduction Amount; PROVIDED that, within 90 days after
CPS notifies the Insurer that CPS has consummated its contemplated acquisition
of Mercury Finance Company, LLC and the related servicing transfer, the Insurer
will consider in good faith whether to increase the percentage in CLAUSE (A)
above to 80% (provided however that any such increase will be in the Insurer's
sole discretion and subject to acknowledgement by the Rating Agencies that such
increase will not result in the withdrawal or reduction below investment grade
of the rating of the Notes without taking into consideration the Note Policy).
"MERCURY RECEIVABLES" means the Receivables acquired from
Mercury Finance Company, LLC pursuant to the Assignment, dated April 19, 2002
between Mercury Finance Company, LLC, as seller and the Seller, as purchaser.
"MERCURY RECEIVABLES ADVANCE RATE" as of any day means 65%."
SECTION 2.2. AMENDMENT TO SECTION 2.1 OF THE SALE AND SERVICING
AGREEMENT. Section 2.1 of the Sale and Servicing Agreement is hereby amended as
follows:
(a) The first sentence of Section 2.1(c) is hereby deleted in
its entirety and replaced with the following:
"In consideration for the sale of the Related Receivables and
Other Conveyed Property described in SECTION 2.1(a) or the related Assignment,
the Purchaser shall, on each Funding Date on which Related Receivables are
transferred hereunder, pay to or upon the order of the Seller the applicable
Purchase Price in the following manner: (i) cash in an amount equal to the
amount of the Advance received by the Purchaser under the Note on such Funding
Date and (ii) to the extent the Purchase Price for the related Receivables and
Other Conveyed Property exceeds the amount of cash described in (i), such excess
shall be treated as a capital contribution by the Seller to the Purchaser."
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SECTION 2.3. AMENDMENT TO SECTION 3.1 OF THE SALE AND SERVICING
AGREEMENT. Section 3.1 of the Sale and Servicing Agreement is hereby amended as
follows:
(a) Section 3.1(a)(ii)(A) is hereby deleted in its entirety
and replaced with the following subsection (A) of Section 3.1(a)(ii):
"(A) each Related Receivable (other than a Mercury Receivable) has
(1) an original term of 24 to 72 months; (2) an original Amount Financed of at
least $3,000 and not more than $35,000; and (3) had an APR of at least 10% and
not more than 27% (subject to applicable laws);".
(b) Section 3.1(a)(xix) is hereby deleted in its entirety and
replaced with the following:
"(xix) TITLE DOCUMENTS. (A) If the Related Receivable was originated
in a State in which notation of a security interest on the title document of the
related Financed Vehicle is required or permitted to perfect such security
interest, the title document of the related Financed Vehicle for such Related
Receivable shows, or if a new or replacement title document is being applied for
with respect to such Financed Vehicle the title document (or, with respect to
Related Receivables that finance a vehicle in the States listed in Annex B,
other evidence of title issued by the applicable Department of Motor Vehicles or
similar authority in such States) will be received within 180 days and will
show, the Seller (or, in the case of a Mercury Receivable, Mercury Finance
Company, LLC) named as the original secured party under the Related Receivable
as the holder of a first priority security interest in such Financed Vehicle,
and (B) if the Related Receivable was originated in a State in which the filing
of a financing statement under the UCC is required to perfect a security
interest in motor vehicles, such filings or recordings have been duly made and
show the Seller (or, in the case of a Mercury Receivable, Mercury Finance
Company, LLC) named as the original secured party under the Related Receivable,
and in either case, the Trustee has the same rights as such secured party has or
would have (if such secured party were still the owner of the Receivable)
against all parties claiming an interest in such Financed Vehicle. With respect
to each Related Receivable for which the title document has not yet been
returned from the Registrar of Titles, the Seller has received written evidence
from the related Dealer that such title document showing the Seller (or, in the
case of a Mercury Receivable, Mercury Finance Company, LLC) as first lienholder
has been applied for."
(c) Section 3.1(a)(xxxiv) is hereby deleted in its entirety
and replaced with the following:
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"RECEIVABLES ORIGINATED BY MERCURY FINANCE LLC.
Receivables that have been acquired from or originated by Mercury Finance LLC
will not be Eligible Receivables; PROVIDED that the Mercury Receivables shall be
Eligible Receivables if and to the extent that the Rating Agency Condition is
satisfied with respect thereto."
(d) The following is hereby inserted as Section 3.1(a)(xxxv):
"ADDITIONAL CHARACTERISTICS OF THE MERCURY RECEIVABLES. Each Related
Receivable that is a Mercury Receivable has (1) an original term of 9 to 60
months; (2) an original Amount Financed of at least $1,300 and not more than
$16,500; and (3) had an APR of at least 16.95% and not more than 30% (subject to
applicable laws). The Aggregate Principal Balance of the Mercury Receivables
does not exceed $7,512,391.38."
(e) The following is hereby inserted as Section 3.1(a)(xxxvi):
"NO MATERIAL ADVERSE CHANGES. Since March 8, 2002, there have been
no material adverse changes to the underwriting policies or procedures with
respect to the Mercury Receivables."
ARTICLE III
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CONDITION TO EFFECTIVENESS
SECTION 3.1. EXECUTION OF AMENDMENT BY AMENDING PARTIES. This Amendment
shall become effective upon (a) receipt by the Noteholder and the Controlling
Party of counterparts hereof executed and delivered by the Purchaser, the
Seller, the Servicer, SST, the Standby Servicer and the Trustee and (b) receipt
by the Trustee, the Noteholder and the Controlling Party of a certificate by the
Seller that the Rating Agency Condition has been satisfied.
ARTICLE IV
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MISCELLANEOUS
SECTION 4.1. RATIFICATION. Except as expressly set forth herein, this
Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of any of the Amending
Parties under the Sale and Servicing Agreement, nor alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Sale and Servicing Agreement, all of which are
hereby ratified and affirmed in all respects by each of the Amending Parties and
shall continue in full force and effect. This Amendment shall apply and be
effective only with respect to the provisions of the Sale and Servicing
Agreement specifically referred to herein and any references in the Sale and
Servicing Agreement to the provisions of the Sale and Servicing Agreement
specifically referred to herein shall be to such provisions as amended by this
Amendment.
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SECTION 4.2. COUNTERPARTS. This Amendment may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all of such counterparts shall together constitute but one and the same
instrument.
SECTION 4.3. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAW (INCLUDING, WITHOUT LIMITATION, THE UCC) OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO THE PROVISIONS THEREOF REGARDING CONFLICTS OF
LAWS), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAW.
SECTION 4.4. WAIVER OF NOTICE. Each of the Amending Parties waives any
prior notice and any notice period that may be required by any other agreement
or document in connection with the execution of this Amendment.
SECTION 4.5. HEADINGS. The headings of Sections contained in this
Amendment are provided for convenience only. They form no part of this Amendment
or the Sale and Servicing Agreement and shall not affect the construction or
interpretation of this Amendment or the Sale and Servicing Agreement or any
provisions hereof or thereof.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Amending Parties have caused this Amendment to
be duly executed by their respective duly authorized officers as of the day and
year first above written.
CPS WAREHOUSE TRUST
By: Wilmington Trust Company, not in
its individual capacity but solely as
Owner Trustee
By: ____________________
Name:
Title:
CONSUMER PORTFOLIO SERVICES,
INC., as Seller
By: ______________________
Name:
Title:
CONSUMER PORTFOLIO SERVICES,
INC., as Servicer
By: ____________________
Name:
Title:
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BANK ONE TRUST COMPANY, N.A.,
not in its individual
capacity, but solely as
Standby Servicer and Trustee
By: ____________________
Name:
Title:
SYSTEMS & SERVICES
TECHNOLOGIES, INC., as Backup
Servicer
By: ____________________
Name:
Title:
CONSENTED AND AGREED TO (pursuant to Section 11.1 of the Sale and Servicing
Agreement):
PARADIGM FUNDING LLC, as Noteholder
By: _________________________
Name:
Title:
XL CAPITAL ASSURANCE INC., as Controlling Party
By: _________________________
Name:
Title:
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