EXHIBIT 10.38
EXECUTION COPY
AMENDMENT NO. 5 TO THE SALE AND SERVICING AGREEMENT
dated as of March 6, 2003
among
CPS WAREHOUSE TRUST, as
Purchaser and Issuer,
CONSUMER PORTFOLIO SERVICES, INC., as
Seller and Servicer
SYSTEMS & SERVICES TECHNOLOGIES, INC., as
Backup Servicer
BANK ONE TRUST COMPANY, N.A., as
Standby Servicer and Trustee
WESTLB AG, as
Agent
AMENDMENT NO. 5 TO THE SALE AND SERVICING AGREEMENT
AMENDMENT NO. 5 TO THE SALE AND SERVICING AGREEMENT, dated as of March
6, 2003 (the "AMENDMENT") among CPS WAREHOUSE TRUST, a Delaware statutory trust
(in its capacities as the Issuer, the "ISSUER" and as Purchaser, the
"PURCHASER," respectively), 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) and WESTLB AG
(F/K/A WESTDEUTSCHE LANDESBANK GIROZENTRALE) ( the "AGENT"), as it may be
amended, amended and restated, supplemented or otherwise modified from time to
time in accordance with its terms.
RECITALS
--------
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 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") and the SSA 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;
WHEREAS, the Issuer wishes to amend certain provisions of the Sale and
Servicing Agreement; and
WHEREAS, the parties to the Note Purchase Agreement, the Indenture and
the Liquidity Asset Purchase Agreement (collectively, the "OTHER DOCUMENTS") and
the Controlling Party, desire to acknowledge and consent to this Amendment.
1
AGREEMENTS
----------
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
---------
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
----------
AMENDMENTS
SECTION 2.1. AMENDMENTS TO ANNEX A TO THE SALE AND SERVICING AGREEMENT.
ANNEX A to the Sale and Servicing Agreement is hereby amended as follows:
(a) The definition of "Advance Rate" is hereby amended by deleting the existing
definition and replacing it with the following:
"ADVANCE RATE" as of any day means (a)73% MINUS (b) the Advance Rate
Reduction Amount.
(b) The definition of "Facility Termination Date" is hereby amended by deleting
the existing definition and replacing it with the following:
""FACILITY TERMINATION DATE" means the earlier of (i) March 4, 2004 (or
such later date as agreed upon pursuant to SECTION 2.05 of the Note Purchase
Agreement) and (ii) the date of the occurrence of a Funding Termination Event."
(c) The following definitions are hereby deleted in their entirety:
"CPS Receivables Advance Rate";
"Mercury Receivables"; and
"Mercury Receivables Advance Rate".
2
SECTION 2.2. CONSENT OF THE PARTIES TO THE OTHER DOCUMENTS AND THE
CONTROLLING PARTY. The parties to the Other Documents and the Controlling Party
hereby consent to the amendment set forth in Sections 2.1 hereof and acknowledge
that the Other Documents are similarly amended IPSO FACTO to the extent the term
"Facility Termination Date" is used therein.
ARTICLE III
-----------
CONDITION TO EFFECTIVENESS
SECTION 3.1. EXECUTION OF AMENDMENT BY AMENDING PARTIES. This Amendment
shall become effective upon receipt by the Noteholder, the Controlling Party,
the Agent, Paradigm and the Committed Note Purchaser of executed counterparts of
this Amendment.
ARTICLE IV
----------
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. Notwithstanding the preceding sentence, this Amendment shall apply
and be effective with respect to the provisions of the Other Documents.
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.
3
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, the Sale and Servicing Agreement and shall not affect the
construction or interpretation of this Amendment, the Sale and Servicing
Agreement or any provisions hereof or thereof.
[Remainder of Page Intentionally Left Blank]
4
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:
5
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:
WESTLB AG, NEW YORK BRANCH, as
Agent
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
6
CONSENTED AND AGREED TO:
PARADIGM FUNDING LLC, as Noteholder
By:___________________________________
Name:
Title:
XL CAPITAL ASSURANCE INC., as Controlling Party
By:____________________________________
Name:
Title:
WESTLB AG, NEW YORK BRANCH, as Committed Note Purchaser
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
7
WESTLB AG, NEW YORK BRANCH, as Liquidity Agent
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
WESTLB AG, NEW YORK BRANCH, as Administrator
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
8
WESTLB AG, NEW YORK BRANCH, as Purchaser
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
9
BANK ONE TRUST COMPANY, N.A.
By:
-------------------------------------------
Name:
Title:
10