OMNIBUS AMENDMENT AGREEMENT
containing
AMENDMENT NO. 1 TO SALE AND SERVICING AGREEMENT
SUPPLEMENTAL INDENTURE NO. 1
and
AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT
dated as of November 8, 2006
among
PAGE THREE FUNDING LLC, as
Purchaser and Issuer,
CONSUMER PORTFOLIO SERVICES, INC., as
Seller and Servicer
WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Trustee, Backup Servicer, Bank, Lockbox Processor and Deposit Account Bank
BEAR, STEARNS & CO. INC., as
Note Purchaser
and
BEAR, STEARNS SECURITIES CORP., as
Noteholder and Majority Noteholder
OMNIBUS AMENDMENT AGREEMENT
This OMNIBUS AMENDMENT AGREEMENT (this "AMENDMENT"), dated as of
November 8, 2006, is by and among Page Three Funding LLC, as purchaser (in such
capacity, the "PURCHASER") and as issuer (in such capacity, the "ISSUER"),
Consumer Portfolio Services, Inc., as servicer (in such capacity, the
"SERVICER") and as seller (in such capacity, the "SELLER") and Wells Fargo Bank,
National Association, as trustee (in such capacity, the "TRUSTEE"), backup
servicer (in such capacity, the "BACKUP SERVICER"), depository bank (in such
capacity solely for purposes of Section 7(e), the "BANK"), lockbox processor (in
such capacity solely for purposes of Section 7(e), the "LOCKBOX PROCESSOR") and
deposit account bank (in such capacity solely for purposes of Section 7(e), the
"DEPOSIT ACCOUNT BANK"), Bear, Stearns & Co. Inc., as successor note purchaser
(in such capacity, the "NOTE PURCHASER"), and Bear, Stearns Securities Corp., as
successor noteholder (in such capacity, the "NOTEHOLDER") and majority
noteholder (in such capacity, the "MAJORITY NOTEHOLDER").
WHEREAS, the Purchaser, the Issuer, the Seller, the Servicer, the
Trustee and the Backup Servicer have entered into the Sale and Servicing
Agreement dated as of November 15, 2005, as the same may be amended, amended and
restated, supplemented or otherwise modified in accordance with its terms (the
"SALE AND SERVICING AGREEMENT");
WHEREAS, the Issuer and the Trustee have entered into the Indenture
dated as of November 15, 2005, as the same may be amended, amended and restated,
supplemented or otherwise modified in accordance with its terms (the
"INDENTURE");
WHEREAS, the Issuer, the Purchaser, the Seller, the Servicer and Bear,
Stearns International Limited ("BSIL") have entered into the Note Purchase
Agreement dated as of November 15, 2005, as the same may be amended, amended and
restated, supplemented or otherwise modified in accordance with its terms (the
"NOTE PURCHASE AGREEMENT");
WHEREAS, BSIL and Bear, Stearns & Co. Inc. have entered into that
certain Assignment and Assumption Agreement dated as of December 30, 2005
pursuant to which BSIL sold and assigned, and Bear, Stearns & Co. Inc. purchased
and assumed, among other things, all of BSIL's rights and obligations as "Note
Purchaser" under the Note Purchase Agreement and the other Basic Documents and
any other documents or instruments delivered pursuant thereto; and
WHEREAS, the parties hereto desire to amend (i) the Sale and Servicing
Agreement in certain respects as provided below with the consent of the
Noteholder in accordance with the terms and provisions of Section 11.1 of the
Sale and Servicing Agreement; (ii) the Indenture in certain respects as provided
below with the consent of the Note Purchaser and the Majority Noteholders in
accordance with the terms and provisions of Section 9.1(b) of the Indenture; and
(iii) the Note Purchase Agreement in certain respects as provided below in
accordance with the terms and provisions of Section 8.01 of the Note Purchase
Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
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Section 1. DEFINED TERMS. As used in this Amendment capitalized terms
have the same meanings assigned thereto in the Annex A to the Sale and Servicing
Agreement.
Section 2. AMENDMENTS TO SALE AND SERVICING AGREEMENT. The Sale and
Servicing Agreement is hereby amended as follows:
(A) Subparagraphs (v) and (vi) of Section 2.1(a) of the Sale and
Servicing Agreement are hereby amended and restated to read as follows:
(v) all proceeds from recourse against Dealers or
Consumer Lenders with respect to the Receivables and all
other rights (but none of the obligations) of the Seller
under any agreements with Dealers or Consumer Lenders;
(vi) refunds for the costs of extended service contracts
with respect to Financed Vehicles securing the 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 Receivable or
his or her obligations with respect to a Financed Vehicle and
any recourse to Dealers or Consumer Lenders for any of the
foregoing;
(B) Subparagraph (i) of Section 3.1(a) of the Sale and Servicing
Agreement is hereby amended and restated to read as follows:
(i) CHARACTERISTICS OF RECEIVABLES. Each Receivable (1)
is evidenced either by (i) a retail installment sale contract
or (ii) an installment promissory note and security
agreement; (2) if such Receivable is evidenced by a retail
installment sale contract, has been originated in the United
States of America by a Dealer for the retail sale of a
Financed Vehicle in the ordinary course of such Dealer's
business and without any fraud or misrepresentation on the
part of the Dealer, such Dealer had all necessary licenses
and permits to originate such Receivables in the state where
such Dealer was located, has been fully and properly executed
by the parties thereto, has been purchased by the Seller
directly from the Dealer in connection with the sale of
Financed Vehicles by the Dealer and has been validly assigned
without any intervening assignments by such Dealer to the
Seller in accordance with its terms; (3) if such Receivable
is evidenced by an installment promissory note and security
agreement, has been originated in the United States of
America by a Consumer Lender in the ordinary course of such
Consumer Lender's business and without any fraud or
misrepresentation on the part of such Consumer Lender or the
Dealer, and such Consumer Lender had all necessary licenses
and permits to originate such Receivable in the State where
such Receivable was originated and where such Consumer Lender
was located, and such Receivable has been fully and properly
executed by the parties thereto, has been purchased by the
Seller directly from the Consumer Lender (if the Consumer
Lender is not the Seller) in connection with the sale of
Financed Vehicles by the Dealer and has been validly assigned
by such Consumer Lender without any intervening assignments
by such Consumer Lender to the Seller (if the Consumer Lender
is not the Seller); (4) has created a valid, subsisting, and
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enforceable first priority perfected security interest in
favor of the Seller or the Consumer Lender, as applicable, in
the Financed Vehicle, which security interest has been
validly assigned by the Seller to the Purchaser or by the
Consumer Lender to the Seller (if the Consumer Lender is not
the Seller) and by the Seller to the Purchaser, as
applicable, and by the Purchaser to the Trustee; (5) contains
customary and enforceable provisions such that the rights and
remedies of the holder or assignee thereof shall be adequate
for realization against the collateral of the benefits of the
security including without limitation a right of repossession
following a default; (6) provides for level weekly,
bi-weekly, semi-monthly or monthly payments that fully
amortize the Amount Financed over the original term (except
for the last payment, which may be different from the level
payment but in no event shall exceed three times such level
payment) and yields interest at the Annual Percentage Rate;
(7) if such Receivable is evidenced by a retail installment
sale contract, was originated by a Dealer to an Obligor and
was sold by the Dealer to the Seller, or if such Receivable
is evidenced by an installment promissory note and security
agreement, was originated by a Consumer Lender to an Obligor
and, if not originated by Seller, has been sold by such
Consumer Lender to the Seller, in each case without any fraud
or misrepresentation on the part of Seller, such Consumer
Lender, such Dealer or the related Obligor; (8) is
denominated in U.S. dollars; (9) provides, in the case of
prepayment, for the full payment of the Principal Balance
thereof plus accrued interest through the date of prepayment
based on the APR of the Receivable; and (10) contains no
obligation to lend more money to the related Obligor in the
future.
(C) Subparagraphs (B) and (E) of clause (ii) of Section 3.1(a) of
the Sale and Servicing Agreement are hereby amended and restated to
read as follows:
(B) each Related Receivable is not more than 30 days
past due with respect to more than 10% of any Scheduled
Receivable Payment as of the related Cutoff Date and no funds
have been advanced by the Seller, any Dealer, any Consumer
Lender or anyone acting on their behalf in order to cause any
Related Receivable to satisfy such requirement;
(E) each Related Receivable that is a Seasoned
Receivable shall (i) not have an Obligor that has failed to
make the first Scheduled Receivable Payment due on such
Seasoned Receivable, (ii) not have been sold to the Purchaser
and pledged to the Trustee for the benefit of the Noteholders
and the Note Purchaser more than 120 days after the Seller
paid the related Dealer or Consumer Lender (if such Consumer
Lender is not the Seller) for such Seasoned Receivable, (iii)
not have an Obligor that has ever been delinquent in payment
with respect to such Seasoned Receivable for more than sixty
(60) days.
(D) The last sentence of clause (xv) of Section 3.1(a) of the Sale
and Servicing Agreement is hereby amended and restated to read as
follows:
No Dealer or Consumer Lender (unless such Consumer Lender is
the Seller) has a participation in, or other right to receive,
proceeds of any Receivable.
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(E) The last sentence of clause (xvi) of Section 3.1(a) of the
Sale and Servicing Agreement is hereby amended and restated to read as
follows:
For the validity of such sales, transfers, assignments and
pledges, no consent by any Dealer, Consumer Lender, Obligor or any
other Person is required under any agreement or applicable law.
(F) Clause (xxvi) of Section 3.1(a) of the Sale and Servicing
Agreement is hereby amended and restated to read as follows:
(xxvi) OBLIGATION TO DEALERS OR OTHERS. The Purchaser and its
assignees will assume no obligation to Dealers, Consumer Lenders
or other originators or holders of the Related Receivables
(including, but not limited to under dealer reserves) as a result
of its purchase of the Related Receivables.
(G) Section 3.1(a) of the Sale and Servicing Agreement is hereby
amended by adding the following clause (xlvi) in appropriate numerical
order to read as follows:
(xlvi) CONSUMER LENDERS. Each Consumer Lender has obtained
all necessary licenses and approvals in all jurisdictions in which
the origination and purchase of installment promissory notes and
security agreements and the sale thereof to the Seller requires or
shall require such licenses or approvals, except where the failure
to obtain such licenses or approvals would not result in a
Material Adverse Effect.
(H) The first sentence of Section 4.1 of the Sale and Servicing
Agreement is hereby amended and restated to read as follows:
Section 4.1 DUTIES OF SERVICER. The Servicer, as agent for
the Purchaser, the Note Purchaser and the Noteholders, shall
manage, service, administer and make collections on the
Receivables with reasonable care, using that degree of skill and
attention customary and usual for institutions that service motor
vehicle retail installment sale contracts or installment
promissory note and security agreements similar to the Receivables
and, to the extent more exacting, that the Servicer exercises with
respect to all comparable automotive receivables that it services
for itself or others.
(I) The penultimate sentence of Section 4.3 of the Sale and
Servicing Agreement is hereby amended and restated to read as follows:
The Servicer shall follow such customary and usual practices
and procedures as it shall deem necessary or advisable in its
servicing of automotive receivables, consistent with the standards
of care set forth in Section 4.2, which may include reasonable
efforts to realize upon any recourse to Dealers or Consumer
Lenders (if such Consumer Lender is not the Seller) and selling
the Financed Vehicle at public or private sale.
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(J) Clause (3) of the first sentence of Section 4.11 of the Sale
and Servicing Agreement is hereby amended and restated to read as
follows:
(3) included an examination of the delinquency and loss
statistics relating to the Servicer's portfolio of automobile and
light truck installment sale contracts and promissory notes and
security agreements;
(K) The last sentence of Section 4.15 of the Sale and Servicing
Agreement is hereby amended and restated to read as follows:
The Trustee agrees that if as of the Business Day succeeding
the Payment Date occurring during any term of the Servicer, the
Trustee shall not have received any Servicer Extension Notice as
of such date, the Trustee shall, within five days thereafter, give
written notice of such non receipt to the Note Purchaser and the
Servicer and the Servicer's term shall not be extended unless a
Servicer Extension Notice is received on or before the last day of
such term.
(L) Section 8.1 of the Sale and Servicing Agreement is hereby
amended by amending and restating clause (b) thereof to read as
follows:
(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 (including, without limitation, the
origination or purchase of motor vehicle retail installment sale
contracts or installment promissory note and security agreements,
the sale of the Receivables to the Purchaser hereunder, the
servicing of the Receivables as required by this Agreement, and
its other obligations hereunder and under the other Basic
Documents) requires or shall require such qualification except
where the failure to so qualify or obtain such licenses or
consents would not result in a Material Adverse Effect or a
Material Adverse Change.
(M) Subparagraphs (v) and (vi) of Section 2 of the form of
Assignment attached as Exhibit F to the Sale and Servicing Agreement
are hereby amended and restated to read as follows:
(v) all proceeds from recourse against Dealers or Consumer
Lenders with respect to the Receivables and all other rights (but
none of the obligations) of the Seller under any agreements with
Dealers or Consumer Lenders;
(vi) refunds for the costs of extended service contracts with
respect to Financed Vehicles securing the 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 Receivable or his or her obligations
with respect to a Financed Vehicle and any recourse to Dealers or
Consumer Lenders for any of the foregoing;
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Section 3. AMENDMENTS TO ANNEX A TO THE SALE AND SERVICING AGREEMENT.
Annex A to the Sale and Servicing Agreement is hereby amended as follows:
(A) A new defined term "Advance Rate" is hereby added to read as
follows:
"ADVANCE RATE" means 83%.
(B) The defined term "Amount Financed" is hereby amended and
restated to read as follows:
"AMOUNT FINANCED" means, with respect to a Receivable, the
aggregate amount advanced under such Receivable toward the
purchase price of the Financed Vehicle and any related costs,
including amounts advanced in respect of accessories, insurance
premiums, service and warranty contracts, other items customarily
financed as part of a Contract, and related costs.
(C) The defined term "Borrowing Base" is hereby amended and
restated to read as follows:
"BORROWING BASE" means, as of any date of determination, an
amount equal to the lesser of (A) 88% of Market Value and (B) the
product of (I) the excess of (a) the aggregate Principal Balance
of all Eligible Receivables as of such date of determination
(after giving effect to any Available Funds allocable to principal
payments made by the related Obligors) over (b) the Excess
Concentration Amount for the Eligible Receivables and (II) the
Advance Rate.
(D) The defined term "Commitment Fee" is hereby amended and
restated to read as follows:
"COMMITMENT FEE" means, with respect to any Settlement Date,
for so long as no Funding Termination Event shall have occurred
and be continuing, a fee in an amount equal to the product of (a)
a fraction, the numerator of which is the actual number of days
elapsed in the related Accrual Period and the denominator of which
is 360, (b) twenty-five basis point (0.25%) and (c) the excess, if
any, of (i) the Maximum Invested Amount over (ii) the daily
average of the Invested Amount over the immediately preceding
Accrual Period set forth in the related Servicer's Certificate as
and to the extent verified by the Note Purchaser.
(E) The defined term "Concentration Limits" is hereby amended to
add a new clause (vi) thereto which shall read as follows:
(vi) Receivables evidenced by installment promissory note and
security agreements shall not at any time represent more than 10%
of the Aggregate Principal Balance of the Receivables.
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(F) The defined term "Contract" is hereby amended and restated to
read as follows:
"CONTRACT" means a motor vehicle retail installment sale
contract or, in the case of a Contract originated by a Consumer
Lender, an installment promissory note and security agreement, in
each case relating to the sale or refinancing of new or used
automobiles, light duty trucks, vans or minivans, and any other
documents related thereto from time to time.
(G) A new defined term "Consumer Lender" is hereby added, to read
as follows:
"CONSUMER LENDER" means a Person that is licensed under
applicable law to originate loans to natural persons resident in
one or more of the United States of America and authorized by CPS
to participate in its direct lending program, and includes the
Seller.
(H) The defined term "Maximum Invested Amount" is hereby amended
and restated to read as follows:
"MAXIMUM INVESTED AMOUNT" means $200,000,000.00.
(I) The defined term "Net Acquisition Fee" is hereby amended and
restated to read as follows:
"NET ACQUISITION FEE" means, for ANY Receivable, (a) the sum
of (i) PLAUSA3 and (ii) PLASFE less (b) PLTDIF, in each case, as
reflected in the Data Tape Fields delivered prior to each Funding
Date pursuant to Section 2.1(b)(i) of the Sale and Servicing
Agreement, which amount shall represent the difference between the
original Principal Balance of the related Receivable and the
amount paid by the Seller to the Dealer or Consumer Lender (if
such Consumer Lender is not the Seller) for such Receivable
(without giving effect to the Seller netting from such amount the
first payment due with respect to such Receivable).
(J) The defined term "Receivable" is hereby amended and restated
to read as follows:
"RECEIVABLE" means each Contract listed on the Schedule of
Receivables and all rights and obligations thereunder, except for
Receivables that have become Purchased Receivables and, for the
avoidance of doubt, shall include all Related Receivables (other
than Related Receivables that have become Purchased Receivables).
(K) The defined term "Scheduled Maturity Date" is hereby amended
and restated to read as follows:
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"SCHEDULED MATURITY DATE" means November 8, 2007 or such
later date as agreed upon pursuant to Section 2.05 of the Note
Purchase Agreement.
(L) The defined term "Seasoned Receivable" is hereby amended and
restated to read as follows:
"SEASONED RECEIVABLE" shall mean an Eligible
Receivable that was sold to the Purchaser and pledged to the
Trustee for the benefit of the Noteholders and the Note
Purchaser more than 31 days after the Seller paid the related
Dealer or Consumer Lender (if such Consumer Lender is not the
Seller) for such Eligible Receivable.
Section 4. AMENDMENTS TO INDENTURE. The Indenture is hereby amended as
follows:
(A) Subparagraphs (e) and (f) of the Granting Clause of the
Indenture are hereby amended and restated in their entirety to read as
follows:
(e) all proceeds from recourse against Dealers or Consumer
Lenders with respect to the Receivables and all other rights (but
none of the obligations) of the Seller under any agreements with
Dealers or Consumer Lenders;
(f) refunds for the costs of extended service contracts with
respect to Financed Vehicles securing 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 Receivable or his or her obligations
with respect to a Financed Vehicle and any recourse to Dealers or
Consumer Lenders for any of the foregoing;
(B) The following paragraph is hereby added as the penultimate
paragraph of Section 2.05(e) of the Indenture:
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AND
SUBJECT TO INCREASES AND DECREASES AS SET FORTH HEREIN AND
IN THE INDENTURE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
(C) Section 2.7 of the Indenture is hereby amended and restated to
read as follows:
SECTION 2.7 PERSON DEEMED OWNER. Prior to due presentment for
registration of transfer of any Note, the Trustee and any agent of
the Trustee may treat the Person in whose name such Note is
registered (as of the applicable Record Date) as the owner of such
Note for the purpose of receiving payments of principal of and
interest, if any, on such Note, for all other purposes whatsoever
and whether or not such Note be overdue, and none of the Issuer,
the Trustee or any agent of the Issuer or the Trustee shall be
affected by notice to the contrary.
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(D) Section 9.1 of the Indenture is hereby amended to add a new
heading to read as follows:
SECTION 9.1 SUPPLEMENTAL INDENTURES WITH CONSENT OF THE NOTE
PURCHASER AND THE MAJORITY NOTEHOLDERS.
(E) The heading and introductory paragraph of Section 9.2 of the
Indenture is hereby amended and restated to read as follows:
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF THE NOTE
PURCHASER AND ALL OF THE NOTEHOLDERS. The Issuer and the Trustee,
when authorized by an Issuer Order, also may, with the prior
written consent of the Note Purchaser and the Majority
Noteholders, enter into an indenture or indentures supplemental
hereto for any purpose; provided, however, that such action shall
not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of the Note Purchaser or the
Noteholders; provided, further however, that, no such supplemental
indenture shall, without the prior written consent of the Note
Purchaser and all of the Noteholders:
(F) The form of Note attached as Exhibit A to the Indenture is
hereby amended and restated in its entirety to read as set forth in
EXHIBIT A to this Amendment.
Section 5. AMENDMENTS TO NOTE PURCHASE AGREEMENT. The Note Purchase
Agreement is hereby amended as follows:
(A) Subparagraph (g) of Section 6.02 of the Note Purchase
Agreement is hereby amended and restated in its entirety to read as
follows:
(g) no more than two such Advances shall be made in the same
calendar week.
(B) The last sentence of subparagraph (r) of Section 6.02 of the
Note Purchase Agreement is hereby amended and restated in its entirety
to read as follows:
With respect to each such Related Receivable, the applicable
Dealer or Consumer Lender (if such Consumer Lender is not the
Seller), as applicable, has either been paid or received
credit from Seller for all proceeds from the sale of such
Related Receivable to the Seller.
Section 6. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. The
agreement of the Trustee and Backup Servicer and the consent of the Note
Purchaser and Noteholder to this Amendment are subject to the receipt by the
Trustee, Backup Servicer and the Note Purchaser of the following documents in
form and substance reasonably satisfactory to the Trustee, Backup Servicer and
the Note Purchaser and their respective counsel:
(A) This Amendment, executed and delivered on behalf of the
parties hereto;
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(B) An Opinion of Counsel to the purchaser and CPS addressed to
the Trustee, Backup Servicer and the Note Purchaser in form and
substance satisfactory to the Trustee, Backup Servicer and the Note
Purchaser, including an Opinion of Counsel as required by Section 11.1
of the Sale and Servicing Agreement and Sections 9.1(b), 9.3 and 11.1
of the Indenture;
(C) A UCC Financing Statement Amendment in substantially the form
attached hereto as EXHIBIT B-1 with respect to the financing statement
on Form UCC-1 which was filed with the Secretary of State of the State
of California November 17, 2005, naming the Seller as debtor/seller and
the Purchaser as secured party/purchaser (File No. 05-7049092238), and
a UCC Financing Statement Amendment in substantially the form attached
hereto as EXHIBIT B-2 with respect to the financing statement on Form
UCC-1 which was filed with the Secretary of State of the State of
Delaware on November 17, 2005, naming the Purchaser as debtor and the
Trustee as secured party (File No. 53577484);
(D) A duly executed Issuer Order;
(E) A duly executed Officer's Certificate as required by Section
11.1 of the Indenture; and
(F) A duly executed and delivered replacement Note in
substantially the form attached hereto as EXHIBIT A.
Section 7. RATIFICATION; REPRESENTATIONS AND WARRANTIES, ETC.
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(a) Except as expressly amended hereby, all of the terms of the
Basic Documents shall remain in full force and effect and are hereby
ratified and confirmed in all respects. This Amendment shall not
constitute a novation.
(b) The Purchaser, Seller, Issuer and Servicer each hereby
represents and warrants that (i) it has the requisite power and
authority, and legal right, to execute and deliver this Amendment and
to perform its obligations under this Amendment and the Basic Documents
(as modified by this Amendment, if applicable), (ii) it has taken all
necessary corporate and legal action to duly authorize the execution
and delivery of this Amendment and the performance of its obligations
under this Amendment, (iii) this Amendment has been duly executed and
delivered by it, (iv) this Amendment constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or
at law), and (v) after giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing.
(c) Each representation and warranty contained in the Basic
Documents (as modified by this Amendment, if applicable) is true and
correct and is hereby restated and affirmed.
(d) Each covenant contained in the Basic Documents (as modified by
this Amendment, if applicable) is hereby restated and affirmed.
(e) The parties hereto, including without limitation Wells Fargo
Bank, National Association, in its capacities as Bank and Lockbox
Processor under the Lockbox Agreement and as Deposit Account Bank under
the Account Control Agreement, hereby acknowledge and agree that each
reference to the Sale and Servicing Agreement (including, without
limitation, Annex A thereto), the Indenture, the Note and the Note
Purchase Agreement in the Basic Documents shall be deemed to refer to
such documents or instruments as amended by this Amendment and as
further amended, restated or otherwise modified from time to time.
Section 8. FURTHER ASSURANCES. The parties hereto hereby agree to
execute and deliver such additional documents, instruments or agreements as may
be reasonably necessary and appropriate to effectuate the purposes of this
Amendment and the Basic Documents (as modified by this Amendment, if
applicable).
Section 9. CONFLICTS. In the event of a conflict of any provision
hereof with any provision or definition set forth in the Basic Documents, the
provisions and definitions of this Amendment shall control.
Section 10. SEVERABILITY. Any provision of this Amendment or any other
Basic Document that 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 thereof or affecting the validity, enforceability
or legality of such provisions in any other jurisdiction.
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Section 11. ENTIRE AGREEMENT. This Amendment and the other Basic
Documents constitute the entire agreement among the parties relative to the
subject matter hereof. Any previous agreement among the parties with respect to
the subject matter hereof is superseded by this Amendment and the other Basic
Documents. Nothing in this Amendment on in the other Basic Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Amendment or the other Basic Documents.
Section 12. BINDING EFFECT. This Amendment and the Basic Documents (as
modified by this Amendment, if applicable) shall be binding upon and shall be
enforceable by the Purchaser, Seller, Issuer, Servicer, Note Purchaser,
Noteholder, Backup Servicer and Trustee and their respective successors and
permitted assigns.
Section 13. 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 14. GOVERNING LAW. THIS AMENDMENT AND ALL MATTERS ARISING OUT
OF OR RELATING TO THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES.
Section 15. HEADINGS. The headings of Sections contained in this
Amendment are provided for convenience only. They form no part of this Amendment
and shall not affect the construction or interpretation of this Amendment or any
provisions hereof.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
PAGE THREE FUNDING LLC
By: /s/ MARK CREATURA
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Name: Mark Creatura
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Title: Vice President
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CONSUMER PORTFOLIO SERVICES, INC.
By: /s/ JEFF P. FRITZ
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Name: Jeff P. Fritz
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Title: Sr. Vice President and CFO
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WELLS FARGO BANK, NATIONAL ASSOCIATION, not in
its individual capacity, but solely as Trustee,
Backup Servicer, Bank, Lockbox Processor and
Deposit Account Bank
By: /s/ JASON VAN VLEET
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Name: Jason Van Vleet
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Title: Assistant Vice President
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BEAR, STEARNS & CO. INC., as Note Purchaser
By: /s/ BRANT BROOKS
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Name: Brant Brooks
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Title: Senior Managing Director
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Consented to:
BEAR, STEARNS SECURITIES CORP.,
as Noteholder and as Majority Noteholder
By: /s/ KENNETH L. EDLOW
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Name: Kenneth L. Edlow
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Title: Secretary
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OMNIBUS AMENDMENT AGREEMENT
BEAR STEARNS/PAGE THREE FUNDING WAREHOUSE - SIGNATURE PAGE
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EXHIBIT A
VARIABLE FUNDING NOTE
REGISTERED Maximum Invested Amount: $200,000,000
No. A-1 Percentage Interest: _______%
SEE REVERSE FOR CERTAIN CONDITIONS
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR
"BLUE SKY" LAWS AND MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY TO (I) THE ISSUER
(UPON REDEMPTION THEREOF OR OTHERWISE) OR AN AFFILIATE OF THE ISSUER (AS
CERTIFIED BY THE ISSUER) OR (2) AN INSTITUTIONAL INVESTOR THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
PROMULGATED UNDER THE SECURITIES ACT THAT EXECUTES A CERTIFICATE, SUBSTANTIALLY
IN THE FORM SPECIFIED IN THE INDENTURE, TO THE EFFECT THAT IT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE
ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE
INSTITUTIONAL ACCREDITED INVESTORS UNLESS THE HOLDER IS A BANK ACTING IN ITS
FIDUCIARY CAPACITY) (3) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT, IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A TO A PERSON THAT EXECUTES A CERTIFICATE, SUBSTANTIALLY IN THE FORM
SPECIFIED IN THE INDENTURE, TO THE EFFECT THAT SUCH PERSON IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A), ACTING FOR ITS OWN ACCOUNT, OR
AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED
INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE, OR TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, OR (4) IN A TRANSACTION OTHERWISE EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION, IN EACH SUCH
CASE, IN COMPLIANCE WITH THE INDENTURE AND ALL APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION: PROVIDED, THAT, IN THE
CASE OF CLAUSE (4), THE TRUSTEE OR THE ISSUER MAY REQUIRE AN OPINION OF COUNSEL
TO THE EFFECT THAT SUCH TRANSFER MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE
SECURITIES ACT, WHICH OPINION OF COUNSEL, IF SO REQUIRED, SHALL BE ADDRESSED TO
THE ISSUER AND THE TRUSTEE AND SHALL BE SECURED AT THE EXPENSE OF THE HOLDER. NO
REPRESENTATION IS MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE
144A FOR RESALES OF THIS NOTE.
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THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AND SUBJECT TO
INCREASES AND DECREASES AS SET FORTH HEREIN AND IN THE INDENTURE. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
THE NOTE REGISTRAR SHALL NOT REGISTER ANY TRANSFER OR EXCHANGE OF THIS
NOTE TO THE EXTENT THAT UPON SUCH TRANSFER OR EXCHANGE THERE WOULD BE MORE THAN
FOUR (4) NOTEHOLDERS REFLECTED ON THE NOTE REGISTER.
PAGE THREE FUNDING LLC
VARIABLE FUNDING NOTE
PAGE THREE FUNDING LLC, a Delaware limited liability company (herein
referred to as the "ISSUER"), for value received, hereby promises to pay to
[________________] (the "NOTEHOLDER"), or its registered assigns, such
Noteholder's pro rata portion (based on the Percentage Interest reflected on the
face of this Note) of the principal sum of TWO HUNDRED MILLION DOLLARS
($200,000,000.00) or, if less, the Holders pro rata portion (based on the
Percentage Interest reflected on the face of this Note) of the aggregate unpaid
principal amount outstanding under all of the Notes (whether or not shown on the
schedule attached hereto (or such electronic counterpart maintained by the
Trustee)), which amount shall be payable in the amounts and at the times set
forth in Section 2.8(b) of the Indenture. The Issuer will pay interest on the
Holder's pro rata portion of Advances under all of the Notes at the Note
Interest Rate. Such interest on Advances shall be due and payable on each
Settlement Date until the principal of this Note is paid or made available for
payment, to the extent funds will be available from the Collection Account
processed from and including the preceding Settlement Date to but excluding each
such Settlement Date in respect of (a) an amount equal to interest accrued for
the related Interest Period, which will be equal to the sum of the products, for
each day during the related Interest Period, of (i) the Note Interest Rate for
such date during the Interest Period, (ii) the Aggregate Principal Balance as of
the close of business on such date divided by 360 and (iii) the applicable
Percentage Interest, plus (b) an amount equal to a pro rata portion of any
accrued and unpaid Noteholders' Interest Carryover Shortfall with respect to
prior Interest Periods, with interest on the amount of such Noteholders'
Interest Carryover Shortfall at the Note Interest Rate from the first Business
Day of the related Interest Period. Prior to the Facility Termination Date and
unless an Event of Default shall have occurred, the Issuer shall only be
required to make interest payments on the Invested Amount of the Note to the
holder hereof; provided that the Issuer may, at its option, prepay the Invested
Amount of the Notes, in whole or in part, at any time pursuant to Section 10.1
of the Indenture. Following the occurrence of an Event of Default, the Note
Purchaser and the Majority Noteholders may declare the Invested Amount of the
Notes to be immediately due and payable at par, together with accrued interest
thereon, in accordance with Section 5.2 of the Indenture. Principal of and
interest on this Note shall be paid in the manner specified on the reverse
hereof.
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The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. This Note does not represent an
interest in, or an obligation of, the Servicer or any affiliate of the Servicer
other than the Issuer.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note. Although a summary of certain provisions of the
Indenture are set forth below and on the reverse hereof and made a part hereof,
this Note does not purport to summarize the Indenture and reference is made to
the Indenture for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Servicer and the Trustee. A copy of the Indenture may be
requested from the Trustee by writing to the Trustee at: Wells Fargo Bank,
National Association, 6th & Marquette, MAC N9311-161, Minneapolis, Minnesota
55479, Attention: Corporate Trust Services, -- Asset Backed Administration. To
the extent not defined herein, the capitalized terms used herein have the
meanings ascribed to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Note shall not be
entitled to any benefit under the Indenture referred to on the reverse hereof,
or be valid or obligatory for any purpose.
[Signature page follows.]
A-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually
or in facsimile, by its Authorized Officer.
Date: [_______], 2006 PAGE THREE FUNDING LLC
By: _____________________________
Name: __________________________
Title: __________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Note issued under the within-mentioned Indenture.
WELLS FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By: ____________________________________
Authorized Signature
A-4
REVERSE OF THE NOTE
This Note is the duly authorized Note of the Issuer, designated as its
Variable Funding Note (herein called the "NOTE"), issued under (i) the
Indenture, dated as of November 15, 2005 (such Indenture, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms thereof, is herein called the "INDENTURE"), between the Issuer and
Wells Fargo Bank, National Association, a national banking association, as
trustee (the "TRUSTEE", which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Trustee, the Note Purchaser and the Noteholders.
The Note is subject to all terms of the Indenture. All terms used in this Note
that are defined in the Indenture, as amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof, shall have the
meanings assigned to them in or pursuant to the Indenture, as so amended,
supplemented or otherwise modified.
"SETTLEMENT DATE" means, with respect to each Accrual Period, the 15th
day of the following calendar month, or if such day is not a Business Day, the
immediately following Business Day, commencing on December 15, 2005.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the Facility Termination Date. Notwithstanding the
foregoing, if an Event of Default or shall have occurred and be continuing then,
in certain circumstances, principal on the Note may be paid earlier, as
described in the Indenture.
Payments of interest on this Note due and payable on each Settlement
Date, together with the installment of principal then due, if any, and any
payments of principal made on any Business Day in respect of any prepayments, to
the extent not in full payment of this Note, shall be paid to the Person in
whose name such Note is registered on the Record Date, either (i) by wire
transfer in immediately available funds to such Person's account as it appears
on the Note Register on such Record Date if (A) such Noteholder has provided to
the Note Registrar appropriate written instructions at least five Business Days
prior to such Settlement Date and such Holder's Note in the aggregate evidence a
Percentage Interest of not less than 1% or (B) such Noteholder is the Seller, or
an Affiliate thereof, or if not, (ii) by check mailed to such Noteholder at the
address of such Noteholder appearing on the Note Register, except for the final
installment of principal payable with respect to such Note on a Settlement Date
or on the Facility Termination Date, which shall be payable as provided below.
Any reduction in the principal amount of this Note (or any predecessor Note)
effected by any payments made on any date shall be binding upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not noted thereon.
Final payment of principal (together with any accrued and unpaid interest) on
this Note will be paid to the Noteholders only upon presentation and surrender
of this Note at the Corporate Trust Office for cancellation by the Trustee.
The Issuer shall pay interest on overdue installments of interest at
the Note Interest Rate (calculated for this purpose using the Default Applicable
Margin) to the extent lawful.
A-5
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer substantially in the form
attached hereto duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of authorized
Percentage Interest and in the same aggregate Percentage Interest will be issued
to the designated transferee or transferees. No service charge will be charged
for any registration of transfer or exchange of this Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of transfer
or exchange. Other than exchanges pursuant to Section 9.6 of the Indenture not
involving a transfer.
The obligations of the Issuer under the Indenture, this Note and the
other Basic Documents shall be full recourse obligations of the Issuer.
Notwithstanding the foregoing, the Noteholder, by its acceptance of this Note,
covenants and agrees that no recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer or the Trustee on the Notes, under the
Indenture, any other Basic Document or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Trustee in its
individual capacity (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Issuer or the Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer or the Trustee or of any successor or assign
of the Trustee in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the Trustee has no such obligations
in its individual capacity) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity. Nothing contained in this
Section shall limit or be deemed to limit any obligations of the Issuer, the
Purchaser, the Seller or the Servicer hereunder or under any other Basic
Document, as applicable, which obligations are full recourse obligations of the
Issuer, the Purchaser, the Seller and the Servicer.
Each Noteholder, by its acceptance of this Note, covenants and agrees
that by accepting the benefits of the Indenture that such Noteholder will not
institute against the Issuer, or join in any institution against the Issuer of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Note, the Indenture or the
Basic Documents.
Prior to the due presentment for registration of transfer of this Note,
the Trustee and any agent of the Trustee may treat the Person in whose name the
Note (as of the applicable Record Date) is registered as the owner hereof for
all purposes, whether or not the Note be overdue, and none of the Issuer, the
Trustee or any agent of the Issuer or the Trustee shall be affected by notice to
the contrary.
It is the intent of the Issuer and the Noteholders that, for Federal,
State and local income and franchise tax purposes, this Note will evidence
indebtedness of the Issuer secured by the Collateral. Each Noteholder, by its
acceptance of the Note, agrees to treat the Note for Federal, State and local
income and franchise tax purposes as indebtedness of the Issuer.
A-6
The Indenture permits in certain circumstances, with certain exceptions
as therein provided, the amendment thereof and the modification of the rights
and obligations of the Issuer and the rights of the Note Purchaser and the
Noteholders under the Indenture at any time by the Issuer with the consent of
the Note Purchaser and the Majority Noteholders. The Indenture also contains
provisions permitting the Note Purchaser and/or the Majority Noteholders to
waive compliance by the Issuer with certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Note Purchaser and the
Majority Noteholders (or the Holders of any predecessor Note) shall be
conclusive and binding upon the Note Purchaser, the current Noteholders and all
future Noteholders and of this Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note.
The term "ISSUER" as used in this Note includes any successor to the
Issuer under the Indenture.
This Note is issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations set forth therein.
This Note and the Indenture shall be construed in accordance with the
law of the State of New York, without reference to its conflict of law
provisions (other than Section 5-1401 of the General Obligations Law), and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such law.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed,
subject to any duty of the Issuer to deduct or withhold any amounts as required
by law, including any applicable U.S. withholding taxes.
A-7
INCREASES AND DECREASES
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Unpaid Note
Principal Interest Interest Period Notation Made
Date Amount Increase Decrease Total Rate (if applicable) By
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A-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints______________________, attorney, to transfer said Note
on the books kept for registration thereof, with full power of substitution in
the premises.
Dated: ______________________ ________________________________*
Signature Guaranteed:
_________________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
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