EXHIBIT 10.15.1
FIRST AMENDMENT TO
SECURITIES PURCHASE AGREEMENT
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THIS FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT is dated as of
July 10, 2008 (this "AMENDMENT"), by and between CONSUMER PORTFOLIO SERVICES,
INC., a California corporation (the "COMPANY"), and LEVINE LEICHTMAN CAPITAL
PARTNERS IV, L.P., a Delaware limited partnership (the "PURCHASER").
R E C I T A L S
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A. The Company and the Purchaser are parties to that certain Securities
Purchase Agreement dated as of June 30, 2008 (as amended from time to time, the
"SECURITIES PURCHASE AGREEMENT"), by and between the Company and the Purchaser
pursuant to which, among other things, the Company issued and sold to the
Purchaser, and the Purchaser purchased from the Company, the Securities, all on
the terms and subject to the conditions set forth therein. Unless otherwise
indicated, all capitalized terms used and not otherwise defined herein have the
respective meanings ascribed to them in the Securities Purchase Agreement.
B. Pursuant to the terms of Section 2.6 of the Securities Purchase
Agreement, on the date hereof, the Company is issuing and selling to the
Purchaser, and the Purchaser is purchasing from the Company, the Term B Note
(I.E., a Secured Senior Note Due 2013, in substantially the form of the Term A
Note but in the principal face amount of $15,000,000).
C. In connection with the purchase of the Term B Note by the Purchaser,
the parties wish to amend certain provisions of the Securities Purchase
Agreement as provided herein.
A G R E E M E N T
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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:
1. PURCHASE AND SALE OF TERM B NOTE.
(a) AUTHORIZATION. The Company has authorized the issuance,
sale and delivery to the Purchaser of the Term B Note.
(b) PURCHASE AND SALE OF TERM B NOTE. Subject to the terms and
conditions contained herein and in the Securities Purchase Agreement, and in
reliance upon the representations, warranties, covenants and agreements
contained herein and the Securities Purchase Agreement, the Company hereby
issues, sells and delivers to the Purchaser, and the Purchaser hereby purchases
from the Company, the Term B Note. Concurrently herewith, the Company is
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delivering to the Purchaser the Term B Note, duly executed by the Company, and
the Purchaser is delivering to the Company the Term B Note Purchase Price (net
of amounts permitted to be withheld by the Purchaser as contemplated in Section
2.6(c)(iv) of the Securities Purchase Agreement).
(c) USE OF PROCEEDS. Pursuant to Section 2.6(d) of the
Securities Purchase Agreement, the parties agree that the proceeds to be
received by the Company from the issuance and sale of the Term B Note hereunder
shall be used (i) to repay certain Indebtedness owing to the Folio Funding II
Noteholder, (ii) to pay the fees, costs and expenses associated with the
transactions contemplated by this Amendment and the Securities Purchase
Agreement and (iii) for general corporate purposes, PROVIDED no such proceeds
shall be used for the direct or indirect benefit of any of the Excluded
Subsidiaries.
2. AMENDMENTS TO SECURITIES PURCHASE AGREEMENT. Pursuant to Section
11.2 of the Securities Purchase Agreement, the Securities Purchase Agreement is
hereby amended as follows:
(a) Section 1.1 (Definitions) of the Securities Purchase
Agreement is hereby amended by adding the following new definitions to Section
1.1 in alphabetical order:
"'FIRST AMENDMENT' shall mean a First Amendment to
Securities Purchase Agreement dated as of July 10, 2008,
between the Company and the Purchaser."
"'FOLIO FUNDING II/CITIGROUP PERFORMANCE GUARANTY'
shall mean that certain Performance Guaranty dated as of July
10, 2008, issued by the Company for the benefit of the Folio
Funding II Noteholder and the other "Beneficiaries" (as
defined therein), as amended from time to time subject to the
terms herein."
"'FOLIO FUNDING II/CITIGROUP WARRANT' shall mean that
certain Warrant dated July 10, 2008, issued by the Company to
Citigroup Global Markets Inc. (an Affiliate of the Folio
Funding II Noteholder) entitling the holder thereof to
purchase from the Company up to a total of 2,500,000 shares of
Common Stock, subject to adjustment as provided therein, as in
effect on such date of issuance."
(b) Section 1.1 (Definitions) of the Securities Purchase
Agreement is hereby further amended by replacing the existing definitions of the
following terms with the following new definitions of such terms, respectively:
"'AGREEMENT' shall mean this Agreement, together with
the Exhibits and Disclosure Schedules, as amended by the First
Amendment, and as further amended from time to time."
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"'FOLIO FUNDING II/CITIGROUP DOCUMENTS' shall mean,
collectively, any and all agreements, instruments and other
documents entered into or delivered in connection with the
issuance by Folio Funding II of the Folio Funding II/Citigroup
Notes and any amendments, restatements, supplements,
replacements, renewals, restructurings, refinancings or other
modifications thereof, including (i) the Folio Funding
II/Citigroup Indenture, (ii) the Folio Funding II Sale and
Contribution Agreement, (iii) the Folio Funding II/Citigroup
Note Purchase Agreement, (iv) the Folio Funding II/Citigroup
Notes, (v) the Folio Funding II/Citigroup Performance
Guaranty, (vi) the Folio Funding II/Citigroup Warrant and
(vii) a Termination Agreement dated as of July 10, 2008, among
Folio Funding II, the Company, the Folio Funding II Noteholder
and Wells Fargo Bank."
"'FOLIO FUNDING II/CITIGROUP INDENTURE' shall mean
that certain Amended and Restated Indenture dated as of July
10, 2008, among Folio Funding II, as issuer, the Folio Funding
II Noteholder, as administrative agent, and Wells Fargo Bank,
as trustee, as amended from time to time subject to the terms
herein."
"'FOLIO FUNDING II/CITIGROUP NOTE PURCHASE AGREEMENT'
shall mean that certain Amended and Restated Note Purchase
Agreement dated as of July 10, 2008, among Folio Funding II,
as issuer and purchaser, the Company, as seller, and the Folio
Funding II Noteholder, as note purchaser and administrative
agent, as amended from time to time subject to the terms
herein."
"'FOLIO FUNDING II/CITIGROUP NOTES' shall mean,
collectively, (i) an Amended and Restated Class A-1 Term Note
(No. A-1) dated July 10, 2008, issued by Folio Funding II in
the principal amount of $10,000,000, and (ii) an Amended and
Restated Class A-2 Term Note (No. A-1) dated July 10, 2008,
issued by Folio Funding II in the principal amount of
$60,000,000, each issued under the Folio Funding II/Citigroup
Indenture, in each case as amended from time to time subject
to the terms herein."
"'FOLIO FUNDING II SALE AND CONTRIBUTION AGREEMENT'
shall mean that certain Amended and Restated Sale and
Contribution Agreement dated as of July 10, 2008, between the
Company, as seller, and Folio Funding II, as purchaser, as
amended from time to time subject to the terms herein."
"'NOTES' shall mean, collectively, any and all notes
or similar instruments evidencing any Indebtedness owing by
the Company to the Purchaser or any Affiliate thereof and
issued in connection with any Investment Documents, including
the Term A Note and the Term B Note, in each case as amended
from time to time. The term "NOTE" or "NOTES" shall also
include, where applicable, any additional note or notes issued
by the Company in connection with any Assignments or
Participations thereof. The term 'NOTE' shall refer to any of
the foregoing individually, as applicable."
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"'REGISTRATION RIGHTS AGREEMENT' shall mean that
certain Registration Rights Agreement dated as of June 30,
2008, between the Company and the Purchaser, as amended from
time to time."
"SUBSIDIARY GUARANTY" shall mean that certain
Subsidiary General and Continuing Guaranty dated as of June
30, 2008, made by the Guarantors (as defined therein) in favor
of the Purchaser and the other Beneficiaries (as defined
therein), as amended from time to time.
"'TERM A NOTE' shall mean that certain Secured Senior
Note Due 2013 dated June 30, 2008, issued by the Company to
the Purchaser in the principal face amount of $10,000,000, as
amended from time to time."
"'TERM B NOTE' shall mean that certain Secured Senior
Note Due 2013 dated July 10, 2008, issued by the Company to
the Purchaser in the principal face amount of $15,000,000, as
amended from time to time."
"'TERM B NOTE CLOSING DATE' shall mean July 10,
2008."
(c) Clause (d) of Section 3.3 (Conflicts with Other
Instruments; Existing Defaults; Ranking) of the Securities Purchase Agreement is
hereby amended to read in its entirety as follows:
"(d) All Indebtedness evidenced by the Term A Note,
the Term B Note and any other Note constitutes Senior
Indebtedness of the Company and, other than Indebtedness, if
any, arising under the Folio Funding II/Citigroup Performance
Guaranty, no Indebtedness of the Company ranks PARI PASSU with
the Indebtedness evidenced by the Term A Note, the Term B Note
and any other Note. Without limiting the generality of the
foregoing, all Indebtedness evidenced by the Term A Note, the
Term B Note and any other Note, and all other Obligations,
constitute "Senior Debt" as defined in the Renewable
Subordinated Notes Indenture. There are no agreements,
indentures, instruments or other documents to which the
Company or any of its Subsidiaries is a party or by which it
or they may be bound that directly or indirectly requires or
results in the subordination in any manner of any Indebtedness
under the Term A Note, the Term B Note or any other Note or
any of the other Obligations to the repayment of any other
existing or future Indebtedness of the Company or any of its
Subsidiaries."
(d) Section 1.4 (Headings; Construction and Interpretation;
Fair Meaning) of the Securities Purchase Agreement is hereby amended to read in
its entirety as follows:
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"1.4 HEADINGS; CONSTRUCTION AND INTERPRETATION; FAIR
MEANING. The headings in this Agreement and any other
Investment Document are for convenience of reference only, do
not constitute a part of this Agreement or such other
Investment Document and are not to be considered in construing
or interpreting this Agreement or such other Investment
Document. All section, sub-section, preamble, recital,
exhibit, schedule, disclosure schedule, annex, clause and
party references contained in this Agreement or such other
Investment Document are to this Agreement or such other
Investment Document, as the case may be, unless otherwise
stated. Unless the context of this Agreement or any other
Investment Document clearly requires otherwise, the use of the
word "including" is not limiting and the use of the word "or"
has the inclusive meaning represented by the phrase "and/or."
Unless otherwise specified, the plural includes the singular
and vice versa. References in this Agreement or any other
Investment Document to any agreement, other document or law
"as amended" or "as amended from time to time," or amendments
of any document or law, shall include any amendments,
restatements, supplements, replacements, renewals,
restructurings, refinancings or other modifications. Wherever
required by the context of this Agreement or any other
Investment Document, the masculine, feminine and neuter gender
shall each include the other. This Agreement and each other
Investment Document has been negotiated by, and entered into
between or among, Persons that are sophisticated and
knowledgeable in business matters and that have been
represented by legal counsel. Accordingly, any rule of law or
legal decision that would require interpretation of this
Agreement or any other Investment Document against the party
that drafted it shall not be applicable and is irrevocably and
unconditionally waived. All provisions of this Agreement and
each other Investment Document shall be construed in
accordance with their fair meaning, and not strictly for or
against any party."
(e) Clause (m) of Section 8.3 (Information Reporting
Requirements) of the Securities Purchase Agreement is hereby amended to read in
its entirety as follows:
"(m) Immediately upon the occurrence thereof, written
notice if (i) any "back-up servicer," "sub-servicer" or
similar servicer resigns or is terminated or replaced with
respect to any Securitization Transaction or (ii) any holder
of the Folio Funding II/Citigroup Indebtedness makes any call
or demand for payment of any amount under the Folio Funding
II/Citigroup Performance Guaranty or seeks to enforce any
right to make such a call or demand in any legal proceeding."
(f) Clause (a) of Section 8.8 (Insurance) of the Securities
Purchase Agreement is hereby amended to read in its entirety as follows:
"(a) The Company shall, and cause each Subsidiary to,
maintain with financially sound and reputable insurers
policies of insurance, coverage amounts and related terms and
conditions covering the Company and the Subsidiaries normally
maintained by companies engaged in the same or similar
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business as the Company and the Subsidiaries, or any one of
them, against loss, damage and liability and such other
policies of insurance and coverage amounts as may be
reasonably requested by the Purchaser or the Purchaser. Such
insurance shall include comprehensive general liability, fire
and extended coverage, property damage, workers' compensation,
flood insurance (if customarily maintained in locations in
which any Company Party is located), business interruption
insurance (either for loss of revenues or for additional
expenses), directors and officers liability insurance and, if
requested by the Purchaser, employment practice liability
insurance. So long as any Notes remain outstanding, all such
insurance policies shall include the Required Insurance
Endorsements.
(g) Section 8.8 (Insurance) of the Securities Purchase
Agreement is hereby amended by adding the following new clause (d) at the end of
such Section:
"(d) If the Company and the Purchaser are named as
joint loss payees on or with respect to any policies of
insurance and any insurance proceeds under any such policies
are paid to the Company, such proceeds shall be held by the
Company in trust for the benefit of the Purchaser and the
Company shall remit such proceeds to the Purchaser immediately
upon receipt."
(h) Article 8 (Affirmative Covenants) of the Securities
Purchase Agreement is hereby amended by adding the following new Section 8.25 to
the end of such Article:
"8.25 NO DEPOSIT ACCOUNTS WITH CERTAIN PERSONS. None
of the Company or any of its Subsidiaries shall at any time
maintain any deposit account, securities account or similar
account with any Person that now has or hereafter acquires any
right of setoff under the Folio Funding II/Citigroup
Documents, and no property of the Company or any of its
Subsidiaries (other than Folio Funding II) shall at any time
be in the possession or under the control of any such Person.
In the event that any such Person at any time holds, maintains
or acquires any interest in any such deposit account,
securities account or similar account, the Company shall, as
soon as practicable but not more than ten (10) days following
the acquisition by such Person of such interest, close (or
cause the closure of) all such deposit accounts, securities
accounts or similar accounts, as the case may be, and transfer
any and all Cash, securities or other assets or funds held in
such account(s) to a deposit account, securities account or
similar account, as applicable, with an institution that does
not have any such right of setoff and is a party to a Control
Agreement in favor of the Purchaser that covers such deposit
account, securities account or similar account."
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(i) Section 9.1 (Limitations on Indebtedness) of the
Securities Purchase Agreement is hereby amended by (i) replacing the period
(".") at the end of clause (g) thereof with "; and" and (ii) adding the
following new clause (h):
"(h) To the extent any obligations of the Company
under the Folio Funding II/Citigroup Performance Guaranty
constitute Indebtedness, any such Indebtedness under the Folio
Funding II/Citigroup Performance Guaranty as it exists as of
the Term B Note Closing Date."
(j) Clause (a) of Section 9.4 (Limitations on Restricted
Payments) of the Securities Purchase Agreement is hereby amended by (i) deleting
the "or" at the end of clause (iii) thereof, (ii) replacing the period (".") at
the end of clause (iv) thereof with "; or" and (iii) adding the following new
clause (v):
"(v) "(A) any prepayment of the principal balance of
the Folio Funding II Indebtedness occurring on the Term B Note
Closing Date pursuant to the Folio Funding II Documents and
(B) scheduled payments of principal of or interest on the
Folio Funding II/Citigroup Indebtedness notwithstanding that
the Folio Funding II Noteholder holds Equity Interests in the
Company."
(k) Clause (i) of clause (c) of Section 10.1 (Events of
Default) of the Securities Purchase Agreement is hereby amended by replacing the
reference therein to "CLAUSES (A), (B), (H), (J), (K) or (L) of SECTION 8.3
(Informational Reporting Requirements);" with the following:
"CLAUSES (a), (b), (h), (j), (k), (l) or (m) of
SECTION 8.3 (Informational Reporting Requirements);"
(l) Sub-clause (ii) under clause (g) of Section 10.1 (Events
of Default) of the Securities Purchase Agreement is hereby amended in its
entirety to read as follows:
"(ii) Any breach or default (other than as provided
in CLAUSE (I) above or clause (v) below) (or other event or
condition) shall occur and be continuing under any agreement,
indenture or instrument evidencing or governing any
Indebtedness set forth in CLAUSE (I) above, if the effect of
such breach or default (or such other event or condition) is
to cause, or to permit the holder or holders of such other
Indebtedness to cause (upon the giving of notice or the
passage of time or both), such other Indebtedness to mature or
become or be declared due and payable, or required to be
prepaid, redeemed, purchased or defeased (or an offer of
prepayment, redemption, purchase or defeasance is required to
be made) prior to its stated maturity, unless such breach or
default has been waived within ten (10) days following such
breach or default by the Person or Persons entitled to give
such waiver; or"
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(m) Clause (g) of Section 10.1 (Events of Default) of the
Securities Purchase Agreement is hereby amended by adding the following new
clause (v) at the end of such clause:
"(v) Any holder of the Folio Funding II/Citigroup
Indebtedness shall make any call or demand in writing for
payment of any amount under the Folio Funding II/Citigroup
Performance Guaranty or shall seek to enforce any right to
make any call or demand for any such payment in any legal
proceeding; or"
(n) Clause (vii) under the paragraph immediately succeeding
clause (w) of Section 10.1 (Events of Default) of the Securities Purchase
Agreement is hereby amended to read in its entirety as follows:
"(vii) in the case of clause (g)(i) above,
immediately prior to the close of business on the day on which
such payment was due; or in the case of clause (g)(ii) above,
immediately prior to the close of business on the tenth day
following such breach or default if such breach or default has
not been waived by the Person or Persons entitled to give such
waiver; or in the case of clause (g)(iii) above, immediately
prior to the close of business on the day that such lessor
retakes possession of the leased property or initiates legal
proceedings to repossess; or in the case of clause (g)(iv)(A)
above, immediately prior to the close of business on the date
upon which FSA forecloses on its collateral, or as of 12:00
p.m. (noon) (Los Angeles time) on such thirty-first day, or
immediately prior to the close of business on the date upon
which FSA exercises any such rights, powers and remedies, as
applicable; or in the case of clause (g)(iv)(B) above,
immediately prior to the close of business on the day such
default or event of default occurs (or if there is a grace
period therefor, the day that such grace period expires and
the default or event of default shall not have been previously
waived in writing or cured); or in the case of clause (g)(v)
above, immediately upon the making of any such call or demand
or the taking of any action to enforce any such right in any
legal proceeding; or"
(o) Each of the Disclosure Schedules to the Securities
Purchase Agreement listed on EXHIBIT A attached hereto is hereby amended by the
corresponding Disclosure Schedule attached to such EXHIBIT A.
3. CLOSING DELIVERIES. Pursuant to Section 2.6 of the Securities
Purchase Agreement, concurrently herewith:
(a) CLOSING DOCUMENTS. The Company is delivering to the
Purchaser the following closing documents (together with this Amendment and the
Exhibits attached hereto, the "TERM B NOTE DOCUMENTS"):
(i) The Term B Note, duly executed by the Company;
and
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(ii) An Acknowledgment and Affirmation of Subsidiary
Guaranty and Subsidiary Collateral Documents, in form and substance satisfactory
to the Purchaser, duly executed by each Subsidiary Guarantor.
(b) OPINION OF COUNSEL. (i) Andrews & Kurth LLP, special
counsel to the Company Parties, is delivering to the Purchaser (A) a legal
opinion letter, addressed to the Purchaser and dated as of the date hereof, in
accordance with Section 2.6 (c)(vii) of the Securities Purchase Agreement, and
(B) written evidence that the Purchaser may rely on the "true sale and
non-consolidation" legal opinion letter being rendered by Andrews & Kurth LLP to
the Folio Funding II Noteholder in connection with the restructuring of the
Folio Funding II Indebtedness, and (ii) Mark A. Creatura, Esq., General Counsel
to the Company Parties, is delivering to the Purchaser a legal opinion letter,
in form and substance satisfactory to the Purchaser, addressed to the Purchaser
and dated as of the date hereof.
(c) FOLIO FUNDING II/CITIGROUP DOCUMENTS. The Company is
delivering to the Purchaser true, correct and complete copies of any and all
Folio Funding II/Citigroup Documents being executed and delivered in connection
with the restructuring of the Folio Funding II/Citigroup Indebtedness, as
contemplated by Section 2.6(c)(viii) of the Securities Purchase Agreement.
(d) CLOSING CERTIFICATES.
(i) SOLVENCY CERTIFICATE. The Company is delivering
to the Purchaser a Solvency Certificate, in form and substance satisfactory to
the Purchaser, duly executed by the President and Chief Executive Officer and
the Chief Financial Officer of the Company.
(ii) SECRETARY'S CERTIFICATES. Each of the Company
and its Subsidiaries is delivering to the Purchaser a Secretary Certificate, in
form and substance satisfactory to the Purchaser, duly executed by the Secretary
of each such Person, together with any attachments thereto, respectively.
(e) GOOD STANDING. The Purchaser is receiving written evidence
that each of the Company and its Subsidiaries is in "good standing" in its state
of incorporation or formation, as applicable, as of a recent practicable date.
(f) FEES AND EXPENSES. The Company is paying to the Purchaser,
or reimbursing the Purchaser for, all actual and estimated fees, costs and
expenses incurred by or on behalf of the Purchaser and described in Sections
2.6(c)(iv) and 7.5 of the Securities Purchase Agreement. All such amounts are
being paid in immediately available funds to a bank account or accounts
designated by the Purchaser or is being withheld by the Purchaser from the Term
B Note Purchase Price as permitted under Section 2.6(c)(iv) of the Securities
Purchase Agreement.
(g) FLOW OF FUNDS STATEMENT. The Purchaser and the Company are
delivering a "flow of funds" statement, in form and substance satisfactory to
the Purchaser, detailing the sources and uses of all proceeds to be received
from the issuance and sale of the Term B Note.
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4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. In order to induce
the Purchaser to purchase the Term B Note and amend the Securities Purchase
Agreement as provided herein, the Company hereby represents and warrants to the
Purchaser as follows:
(a) ORGANIZATION AND GOOD STANDING. Each Company Party and
Subsidiary is a corporation or limited liability company duly organized or
formed, validly existing and in good standing under the laws of the state of its
organization or formation. Each Company Party and Subsidiary has the requisite
power and authority, and all material Operating Licenses, necessary to own or
lease and operate its properties and assets and to carry on its business as now
conducted and as proposed to be conducted, and is duly qualified or licensed to
do business in each jurisdiction in which the character of the properties or
assets owned, leased or operated by it or the nature of the activities conducted
makes such qualification or licensing necessary, except where the failure to be
so qualified or licensed would not reasonably be expected to have a Material
Adverse Effect.
(b) AUTHORIZATION; BINDING OBLIGATIONS. Each Company Party has
the requisite power and authority to execute, deliver, carry out and perform all
of its obligations under each Term B Note Document to which it is a party,
including, with respect to the Company, the power and authority to issue, sell
and deliver the Term B Note being issued and sold by it hereunder. The
execution, delivery and performance of each Term B Note Document to which each
Company Party is a party, the issuance, sale and delivery by the Company of the
Term B Note and the consummation of the other transactions contemplated hereby
and thereby have been duly authorized by all requisite action on the part of
each such Company Party, and by the members and the Board or managers of each
such entity, as applicable. Each Term B Note Document has been duly executed and
delivered by each Company Party that is a party thereto. Each Term B Note
Document is a legal, valid and binding obligation of each Company Party that is
a party thereto, enforceable against each such Company Party in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or conveyance or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability, and except as rights of indemnity or contribution
may be limited by federal or state securities laws or the public policy
underlying such law.
(c) CONFLICTS WITH OTHER INSTRUMENTS; EXISTING DEFAULTS;
RANKING.
(i) The execution, delivery and performance by each
Company Party of the Term B Note Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby do not (i)
violate the Organizational Documents of any such Person, (ii) breach or violate,
conflict with, cause a default under or give rise to a right of termination or a
redemption or an acceleration of rights under, any Material Contract or (iii)
breach or violate any Applicable Laws. Without limiting the generality of the
foregoing, none of the terms of the Folio Funding II/Citigroup Documents (as
such definition has been amended by this Amendment) breaches or violates,
conflicts with, or causes a Default or an Event of Default under or gives rise
to an acceleration of rights under, the Securities Purchase Agreement or any
other Investment Document.
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(ii) No Company Party or Subsidiary (other than an
Excluded Subsidiary) is in default, breach or violation of (i) its
Organizational Documents, as amended through the date hereof, (ii) any Material
Contract to which it is party or (iii) any Applicable Laws.
(iii) There are no restrictions or limitations in any
Material Contract which prohibit or restrict (i) the issuance and sale of the
Term B Note as contemplated by this Amendment, (ii) any merger, sale of assets
or other event which would cause a Change in Control or (iii) any other
financings by any Company Party, including any public or private debt or equity
financings.
(iv) All Indebtedness evidenced by the Term A Note,
the Term B Note and any other Note constitutes Senior Indebtedness of the
Company and, other than Indebtedness, if any, arising under the Folio Funding
II/Citigroup Performance Guaranty, no Indebtedness of the Company ranks PARI
PASSU with the Indebtedness evidenced by the Term A Note, the Term B Note and
any other Note. Without limiting the generality of the foregoing, all
Indebtedness evidenced by the Term A Note, the Term B Note and any other Note,
and all other Obligations, constitute "Senior Debt" as defined in the Renewable
Subordinated Notes Indenture. There are no agreements, indentures, instruments
or other documents to which the Company or any of its Subsidiaries is a party or
by which it or they may be bound that directly or indirectly requires or results
in the subordination in any manner of any Indebtedness under the Term A Note,
the Term B Note or any other Note or any of the other Obligations to the
repayment of any other existing or future Indebtedness of the Company or any of
its Subsidiaries.
(v) The Renewable Subordinated Notes constitute
Subordinated Indebtedness of the Company.
(vi) No Trigger Event or Insurance Agreement Event of
Default has occurred and is continuing.
(d) CONSENTS. No Company Party or any Subsidiary or Affiliate
thereof is required to obtain any Consent in connection with execution, delivery
or performance of this Amendment or any other Term B Note Document or the
consummation of the transactions contemplated hereby or thereby, including,
without limitation, the issuance, sale and delivery of the Term B Note, from (a)
any Governmental Authority, (b) any trustee, Credit Enhancer, rating agency or
other party to any Securitization Transaction or (c) any other Person, other
than those Consents that have been previously obtained or made by the Company
Parties and except where the failure to obtain or make such Consent could not
have a Material Adverse Effect.
(e) OTHER REPRESENTATIONS AND WARRANTIES. After giving effect
to the amended Disclosure Schedules attached as EXHIBIT A, each of the
representations and warranties made by the Company Parties (or any of them) in
the Securities Purchase Agreement and the Collateral Documents, as the case may
be, was true and correct in all material respects as of the date made, and is
true and correct in all material respects as of the date hereof, with the same
effect as if made on and as of the date hereof.
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(f) NO DEFAULT. No Default or Event of Default has occurred
and is continuing or will occur as a result of the execution and delivery of
this Amendment or the other Term B Note Documents or the consummation of the
other transactions contemplated hereby or thereby, including the issuance and
sale of the Term B Note.
(g) NOTE BALANCE. The outstanding principal balance and
"Maturity Date" of the Notes that remain unpaid immediately prior to the date
hereof are as follows:
OUTSTANDING
NOTE PRINCIPAL BALANCE MATURITY DATE
- ---- ----------------- -------------
Term A Note............ $10,000,000.00 June 30, 2013
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TOTAL $10,000,000.00
(h) NO MATERIAL ADVERSE CHANGE. No Material Adverse Change has
occurred since December 31, 2007 or, except as set forth on Schedule 3.8(b) to
the Securities Purchase Agreement, will occur as a result of the execution and
delivery of this Amendment or the other Term B Note Documents or the
consummation of the other transactions contemplated hereby or thereby, including
the issuance and sale of the Term B Note.
(i) COLLATERAL DOCUMENTS. The Liens granted in favor of the
Purchaser under the Company Collateral Documents constitute valid, enforceable
and continuing first priority security interests and Liens in, on and to the
"Collateral" under the Company Collateral Documents and secure the payment and
performance in full of all Obligations, including all Indebtedness under the
Term A Note and the Term B Note.
(j) STATUS OF FOLIO FUNDING II. The restructuring of the Folio
Funding II/Citigroup Indebtedness has not resulted and will not result in the
recharacterization of the sales contemplated by the Folio II Sale and
Contribution Agreement as secured financings. Folio Funding II has observed and
complied with, and shall observe and comply with, all applicable legal
requirements for the recognition of Folio Funding II as a legal entity separate
and apart from its Affiliates, including those requirements set forth in Section
9(b)(iv) of the Limited Liability Company Agreement of Folio Funding II. The
business, assets and liabilities of Folio Funding II are separate and distinct
from those of its Affiliates, and have been and shall be clearly and
consistently disclosed as such.
(k) NO DEPOSIT ACCOUNTS WITH CERTAIN PERSONS. None of the
Company or any of its Subsidiaries (other than Folio Funding II) maintains any
deposit account, securities account or similar account with any Person that has
any right of setoff under the Folio Funding II/Citigroup Documents, and no
property of the Company or any of its Subsidiaries (other than Folio Funding II)
is in the possession or under the control of any such Person.
(l) REVISED PRO FORMA CLOSING BALANCE SHEET. Attached as
EXHIBIT B hereto is a true, correct and complete copy of a consolidated balance
sheet of the Company and its Subsidiaries as of May 31, 2008, as adjusted to
give PRO FORMA effect to (i) the issuance and sale of the Securities, the
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issuance and sale of the Term B Note and the consummation of the other
transactions contemplated by the Securities Purchase Agreement and this
Amendment and (ii) the restructuring of the Folio Funding II/Citigroup
Indebtedness pursuant to the Folio Funding II/Citigroup Documents (as such term
is amended in this Amendment), in each case as if all such transactions had
occurred on such date (the "PRO FORMA CLOSING BALANCE SHEET"), together with
footnotes describing the PRO FORMA adjustments and the assumptions underlying
the Pro Forma Closing Balance Sheet. The Pro Forma Closing Balance Sheet
properly gives effect to the application of the PRO FORMA adjustments described
therein and contemplated herein and fairly presents in all material respects the
consolidated financial position of the Company and its Subsidiaries on a PRO
FORMA basis as of such date. All PRO FORMA adjustments and assumptions included
in the Pro Forma Closing Balance Sheet were made in good faith and are
reasonable under the circumstances. After due inquiry, no Key Employee is aware
of any fact or other information that would lead him to believe that such PRO
FORMA adjustments or assumptions are incorrect or misleading in any respect
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. The Purchaser hereby
represents and warrants to the Company that:
(a) The Purchaser is acquiring the Term B Note for its own
account, for investment purposes, and not with a view to or for sale in
connection with any distribution thereof in violation of any federal or
applicable state securities laws.
(b) The Purchaser is an "accredited investor" (as such term is
defined in Rule 501 of Regulation D under the Securities Act). By reason of its
business and financial experience, the Purchaser has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of the investment in the Securities,
has the capacity to protect its own interests and is able to bear the economic
risk of such investment. The Purchaser has had an opportunity to review the
books and records of the Company Parties and all documents, information and
agreements furnished to the Purchaser by the Company relating to the Term B
Note, and to ask questions of representatives of the Company concerning the
terms and conditions of the transactions contemplated by this Amendment.
6. RELEASE.
(a) The Company, for itself and on behalf of the Subsidiary
Guarantors and its and their respective successors, assigns, and present and
future stockholders, officers, directors, Affiliates, employees, agents and
attorneys (collectively, the "RELEASING PARTIES"), hereby remises, releases and
forever discharges the Purchaser and its present and former Affiliates,
officers, directors, partners (general and limited), stockholders, members,
managers, employees, agents, attorneys, successors and assigns, from and against
any and all claims, rights, actions, causes of action, suits, liabilities,
defenses, damages, losses, costs and expenses (including attorneys' fees), of
whatever nature, type or description, that are based upon, relate to or arise
out of any facts, acts, omissions, events or circumstances existing or occurring
13
on or prior to the date hereof, whether arising out of or related to this
Amendment, the Securities Purchase Agreement, the Notes, the Guaranties, the
Collateral Documents or any other Investment Document, any of the transactions
contemplated hereby or thereby, the administration or enforcement of the
Obligations or any act, omission or event occurring in connection herewith or
therewith, in each case whether known or unknown, existing or potential or
suspected or unsuspected.
(b) The Company, for itself and on behalf of the other
Releasing Parties, waives any and all claims, rights and benefits it may have
under any law of any jurisdiction that would render ineffective a release made
by a creditor of claims that the creditor does not know or suspect to exist in
its favor at the time of executing the release and that, if known by it, would
have materially affected its settlement with the applicable debtor. The Company,
for itself and on behalf of the other Releasing Parties, acknowledges that it is
aware of the following provisions of section 1542 of the California Civil Code:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
(c) The Company, for itself and on behalf of the other
Releasing Parties, expressly and voluntarily waives each and all claims, rights,
or benefits it has or may have under section 1542 of the California Civil Code,
or any other similar law of any other jurisdiction, to the full extent that it
may lawfully waive such claims, rights and benefits in connection with this
release. The Company, for itself and on behalf of the other Releasing Parties,
acknowledges that (a) it has been represented by independent legal counsel of
its own choice throughout all of the negotiation that preceded the execution of
this Amendment and that it has executed this Amendment after receiving the
advice of such independent legal counsel, and (b) it and its respective counsel
have had an adequate opportunity to make whatever investigation or inquiry they
deem necessary or desirable in connection with the release contained in this
SECTION 6.
(d) No claim shall be made by the Company or any other
Releasing Party against the Purchaser, or any Affiliates, officers, directors,
partners (general and limited), stockholders, members, managers, employees,
agents, attorneys, successors and assigns of the Purchaser, for any special,
indirect, consequential or punitive damages in respect of any claim for breach
of contract or under any other theory of liability arising out of or related to
any of the matters being released under this SECTION 6. The Company, for itself
and on behalf of the other Releasing Parties, hereby waives, releases and agrees
not to sue upon any claim for such damages, whether or not accrued and whether
or not known or suspected to exist in its favor.
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7. CERTAIN CONSENTS BY THE PURCHASER.
(a) Pursuant to Section 6.1 of the Registration Rights
Agreement, the Purchaser hereby consents to the grant by the Company of the
registration rights described in Section 10 of the Folio Funding II/Citigroup
Warrant to the holder thereof.
(b) The Purchaser hereby consents to the amendments to the
related Securitization Transaction Documents being entered into on the date
hereof as contemplated by the Folio Funding II/Citigroup Documents to the extent
that such amendments (i) alter the payment priorities in a manner that will
reduce the amounts payable to the Company or any Subsidiary in violation of
clause (c) of Section 9.10 of the Securities Purchase Agreement or (ii) cause
the Company to become contingently liable for the related Indebtedness in
violation of clause (b)(ii) of Section 9.11 of the Securities Purchase
Agreement. In addition, the Purchaser hereby waives any breach of Sections 9.10
and 9.11 of the Securities Purchase Agreement that would result from the
Company's consummation on the date hereof of the transactions contemplated by
the terms of the Folio Funding II/Citigroup Documents as they exist on the date
hereof.
The consents provided for in this SECTION 7 shall be limited
solely to the matters expressly described therein, respectively, and shall not
be construed or deemed to apply to any other present, or any future, transaction
or matter.
8. CONFIRMATION; FULL FORCE AND EFFECT. The amendments set forth in
SECTION 2 amend the Securities Purchase Agreement on and as of the date hereof,
and the Securities Purchase Agreement 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, as amended hereby, the Notes, the Collateral
Documents (including the Liens granted in favor of the Purchaser under the
Collateral Documents) and each of the other Investment Documents, the terms and
other provisions hereof and thereof and the Obligations hereunder and
thereunder.
9. NO OTHER AMENDMENTS. This Amendment is being delivered without
prejudice to the rights, remedies or powers of the Purchaser under or in
connection with the Securities Purchase Agreement, the Notes, the Guaranties,
the Collateral Documents and the other Investment Documents, Applicable Laws or
otherwise and, except as expressly provided in SECTION 2, shall not constitute
or be deemed to constitute an amendment or other modification of, or a
supplement to, the Securities Purchase Agreement or any Investment Document or
the obligations of the Company Parties thereunder. In addition, except as
expressly provided in SECTION 7(b), nothing contained in this Amendment or any
other Term B Note Document is intended to constitute, or shall be construed as,
a waiver of any Default, Event of Default or other breach or violation of the
Securities Purchase Agreement, the Notes, the Guaranties, the Collateral
Documents or any other Investment Document, whether past, present or future, or
a forbearance by the Purchaser of any of its rights, remedies or powers against
the Company Parties (or any of them) or the Collateral. The Purchaser hereby
expressly reserves all of its rights, powers and remedies under or in connection
with the Securities Purchase Agreement, the Notes, the Guaranties, the
Collateral Documents and the other Investment Documents, whether at law or in
equity, including the right to declare all Obligations to be due and payable.
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10. MISCELLANEOUS PROVISIONS.
(a) ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS. The Term B Note
Documents, the Securities Purchase Agreement and the other Investment Documents
constitute the entire understanding and agreement with respect to the purchase
and sale of the Term B Note and supersede all other prior oral and written, and
all contemporaneous oral, agreements, negotiations, discussions and
understandings with respect thereto. This Amendment shall inure to the benefit
of, and be binding upon, the parties and their respective successors and
permitted assigns.
(b) GOVERNING LAW. IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE (WITHOUT REGARD TO
THE CHOICE OF LAW OR CONFLICTS OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA.
(c) COUNTERPARTS. This Amendment and each other Term B Note
Document may be executed in any number of counterparts and by facsimile
transmission, each of which shall be deemed an original and all of which taken
together shall constitute one and the same instrument.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized representatives as of the date
first written above.
COMPANY
-------
CONSUMER PORTFOLIO SERVICES, INC.,
a California corporation
By: /s/ Jeffrey P. Fritz
---------------------------------------
Jeffrey P. Fritz
Senior Vice President - Accounting and
Chief Financial Officer
PURCHASER
---------
LEVINE LEICHTMAN CAPITAL PARTNERS, INC.,
a California corporation
On behalf of LEVINE LEICHTMAN CAPITAL
PARTNERS IV, L.P., a Delaware limited
partnership
By: /s/ Stephen J. Hogan
-----------------------------------
Stephen J. Hogan
Chief Financial Officer
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