EXHIBIT 4.6.1
AMENDMENT TO
AMENDED AND RESTATED SECURED SENIOR NOTE
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THIS AMENDMENT TO AMENDED AND RESTATED SECURED SENIOR NOTE, effective
as of December 13, 2005 (this "AMENDMENT"), is entered into by and between
CONSUMER PORTFOLIO SERVICES, INC., a California corporation (the "COMPANY"), and
LEVINE LEICHTMAN CAPITAL PARTNERS II, L.P., a California limited partnership
(the "PURCHASER" and, together with any registered assigns, the "HOLDER").
R E C I T A L S
A. The Company and the Purchaser are parties to that certain Third Amended
and Restated Securities Purchase Agreement dated as of January 29, 2004, as
amended by a March 25 Amendment to Securities Purchase Agreement dated as of
March 25, 2004, a Consent and First Amendment to Third Amended and Restated
Securities Purchase Agreement dated as of April 2, 2004, a Third Amendment to
Third Amended and Restated Securities Purchase Agreement dated as of May 28,
2004, and a Fourth Amendment to Third Amended and Restated Securities Purchase
Agreement dated as of June 25, 2004 (as so amended, the "SECURITIES PURCHASE
AGREEMENT").
B. The Purchaser is the holder of that certain Amended and Restated Secured
Senior Note, as amended and restated January 29, 2004, issued by the Company to
the Purchaser in the original principal amount of $15,000,000 (the "TERM D
NOTE"). Unless otherwise indicated, capitalized terms used and not otherwise
defined herein have the meanings ascribed to them in the Securities Purchase
Agreement or the Term D Note, as the case may be.
C. As provided in that certain letter agreement dated December 13, 2005
(the "TERM D NOTE LETTER Agreement") between the Company and the Purchaser, the
Company has requested that the Purchaser extend the Maturity Date of the Term D
Note from December 15, 2005, to December 18, 2006, and the Purchaser has agreed
to do so, on the terms and subject to the conditions set forth in the Term D
Note Letter Agreement and this Amendment.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants,
conditions and provisions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
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1. AMENDMENT OF SECTION 3 (MATURITY DATE). Section 3 of the Term D Note is
hereby amended to read in its entirety as follows:
"3. MATURITY DATE. The Company shall pay in full the entire
outstanding principal balance of this Note, together with all premium, if
any, accrued and unpaid interest on, and all other amounts owing under this
Note, on December 18, 2006 (the "MATURITY DATE")."
2. COMPANY REPRESENTATIONS AND WARRANTIES. To induce the Purchaser to enter
into this Amendment, the Company represents and warrants to the Purchaser that:
(a) This Amendment has been duly authorized, executed and delivered by
the Company and the Subsidiary Guarantors and constitutes a legal, valid and
binding obligation of the Company and each such Subsidiary Guarantor,
enforceable against each of them in accordance with its terms;
(b) The execution, delivery and performance of the Term D Letter
Agreement by the Company and this Amendment (the "AMENDMENT DOCUMENTS") by the
Company and the Subsidiary Guarantors, and the consummation of the other
transactions contemplated hereby and thereby, do not violate or conflict with,
or cause a default under, or give rise to a right of termination under, (i) the
charter or bylaws of the Company or any of its Subsidiaries, as in effect on the
date hereof; (ii) any Material Contract (including any Securitization
Transaction Document), indenture, note, mortgage, instrument or other agreement
to which the Company or any of its Subsidiaries is a party or by which it or any
of its or their properties or assets are bound or (iii) any Applicable Laws;
(c) Neither the Company nor any of its Subsidiaries or other
Affiliates is required to obtain any Consent in connection with execution,
delivery or performance of this Amendment or the consummation of the
transactions contemplated hereby, or for the purpose of maintaining in full
force and effect any Licenses and Permits of the Company or any of its
Subsidiaries, from (a) any Governmental Authority, (b) any trustee, Credit
Enhancer, rating agency or other party to any Securitization Transaction in
connection with the execution and delivery of this Amendment or any Related
Agreement or (c) any other Person;
(d) The outstanding principal balances and "Maturity Dates" of the
Notes, respectively, are as follows (provided that the "Maturity Date" of the
Term D Note gives effect to this Amendment):
Outstanding
Note Principal Balance Maturity Date
- ---- ----------------- -------------
Term B Note............ $19,828,527 December 15, 2005
Term D Note............ 15,000,000 December 18, 2006
Term E Note............ 15,000,000 May 27, 2006
Term F Note............ 10,000,000 June 24, 2006
-----------------
$59,828,527
=================
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(e) No Default or Event of Default has occurred and is continuing or
will result from the execution, delivery or performance of any Amendment
Document or the consummation of the transactions contemplated hereby and
thereby;
(f) The security interests and liens granted by the Company under the
Collateral Documents continue to constitute legal, valid, enforceable and
perfected first priority security interests in the Collateral, prior in right to
all other Liens, which secure the due and punctual payment, performance and
observance in full of all Obligations, including, without limitation, all
Indebtedness and other Obligations under the Term B Note, the Term D Note, as
amended hereby, the Term E Note and the Term F Note; and
(g) Since June 25, 2004, the Company has not formed or acquired any
Subsidiaries other than Special Purpose Entities formed solely for the purposes
of effectuating Securitization Transactions.
3. CONFIRMATION; FULL FORCE AND EFFECT. The amendment set forth in Section
1 above shall amend the Term D Note on and as of the date hereof, and the Term D
Note shall remain in full force and effect, as amended thereby, from and after
the date hereof in accordance with its terms. The Company hereby ratifies,
approves and affirms in all respects each of the Securities Purchase Agreement,
each of the Notes, the Collateral Documents (including the Liens granted in
favor of the Purchaser under the Collateral Documents) and each of the other
Related Agreements, the terms and other provisions hereof and thereof and the
Obligations hereunder and thereunder. The execution, delivery and performance of
this Amendment shall not operate as a waiver of, or limitation with respect to,
any right, power or remedy of the Purchaser under the Securities Purchase
Agreement, the Term D Note, as amended hereby, any other Note, any Collateral
Documents, any other Related Agreement or any Applicable Laws.
4. ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS. This Amendment, together with
the Term D Note Letter Agreement, constitute the entire understanding and
agreement between the Company and the Purchaser with respect to the subject
matter hereof and supersede all prior oral and written, and all contemporaneous
oral, agreements and understandings with respect thereto. This Amendment shall
inure to the benefit of, and be binding upon, the Company, the Purchaser and
their respective successors and permitted assigns.
5. GOVERNING LAW. This Amendment shall be governed by, and construed and
enforced in accordance with, the laws of the State of California applicable to
contracts made and performed in such State, without regard to principles
regarding choice of law or conflicts of laws.
6. COUNTERPARTS. This Amendment may be executed in one or more counterparts
and by facsimile transmission, each of which shall be deemed an original, but
all of which taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company has caused this Amendment to be executed
and delivered by its duly authorized representatives as of the date first
written above.
COMPANY
CONSUMER PORTFOLIO SERVICES, INC.,
a California corporation
By: /s/ Charles E. Bradley, Jr.
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Charles E. Bradley, Jr.
President and Chief Executive Officer
AGREED TO AND ACCEPTED:
LEVINE LEICHTMAN CAPITAL PARTNERS, INC.
On behalf of LEVINE LEICHTMAN
CAPITAL PARTNERS II, L.P.
By: /s/ Steven E. Hartman
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Steven E. Hartman
Vice President
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ACKNOWLEDGMENT AND CONSENT
OF SUBSIDIARY GUARANTORS
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Each of the undersigned Subsidiary Guarantors hereby acknowledges that
it has read the foregoing Amendment to Amended and Restated Secured Senior Note
and consents to its terms. Each of the undersigned further acknowledges and
agrees that the Term D Note, as amended by the foregoing Amendment, and the
other Notes each constitutes a Guarantied Obligation and reaffirms its
obligations under the Subsidiary Guaranty and the other Related Agreements to
which it is a party, all of which remains in full force and effect.
CPS LEASING, INC., a Delaware corporation
CPS MARKETING, INC., a California corporation
MFN FINANCIAL CORPORATION, a Delaware corporation
MERCURY FINANCE COMPANY LLC, a Delaware limited liability
company
MERCURY FINANCE CORPORATION OF ALABAMA, an Alabama corporation
MERCURY FINANCE COMPANY OF ARIZONA, an Arizona corporation
MERCURY FINANCE COMPANY OF COLORADO, a Delaware corporation
MERCURY FINANCE COMPANY OF DELAWARE, a Delaware corporation
MERCURY FINANCE COMPANY OF FLORIDA, a Delaware corporation
MERCURY FINANCE COMPANY OF GEORGIA, a Delaware corporation
MERCURY FINANCE COMPANY OF ILLINOIS, a Delaware corporation
MERCURY FINANCE COMPANY OF INDIANA, a Delaware corporation
MERCURY FINANCE COMPANY OF KENTUCKY, a Delaware corporation
MERCURY FINANCE COMPANY OF LOUISIANA, a Delaware corporation
MERCURY FINANCE COMPANY OF MICHIGAN, a Delaware corporation
MERCURY FINANCE COMPANY OF MISSISSIPPI, a Delaware corporation
MERCURY FINANCE COMPANY OF MISSOURI, a Missouri corporation
MERCURY FINANCE COMPANY OF NEVADA, a Nevada corporation
MERCURY FINANCE COMPANY OF NEW YORK, a Delaware corporation
MERCURY FINANCE COMPANY OF NORTH CAROLINA, a Delaware
corporation
MERCURY FINANCE COMPANY OF OHIO, a Delaware corporation
MFC FINANCE COMPANY OF OKLAHOMA, a Delaware corporation
MERCURY FINANCE COMPANY OF PENNSYLVANIA, a Delaware
corporation
MERCURY FINANCE COMPANY OF SOUTH CAROLINA, a Delaware
corporation
MERCURY FINANCE COMPANY OF TENNESSEE, a Tennessee corporation
MFC FINANCE COMPANY OF TEXAS, a Delaware corporation
MERCURY FINANCE COMPANY OF VIRGINIA, a Delaware corporation
MERCURY FINANCE COMPANY OF WISCONSIN, a Delaware corporation
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GULFCO INVESTMENT, INC., a Louisiana corporation
GULFCO FINANCE COMPANY, a Louisiana corporation
MIDLAND FINANCE CO., an Illinois corporation
MFN INSURANCE COMPANY, a company organized and existing under
the laws of Turks and Caicos
TFC ENTERPRISES, INC., a Delaware corporation (the surviving
corporation of the TFC Merger)
THE FINANCE COMPANY, a Virginia corporation
FIRST COMMUNITY FINANCE, INC., a Virginia corporation
RECOVERIES, INC., a Virginia corporation
PC ACCEPTANCE.COM, INC., a Virginia corporation
THE INSURANCE AGENCY, INC., a Virginia corporation
71270 CORP., a Delaware corporation
By: ___________________________________
Name: _________________________________
Title: ________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
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