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EXHIBIT 10.32
EXECUTION COPY
AMENDMENT
dated as of September 1, 1999
to
Master Spread Account Agreement, as amended and restated as of December 1, 1998
(the "Master Agreement") by and among CPS Receivables Corp. (the "Company"),
Financial Security Assurance Inc. ("Financial Security") and Norwest Bank
Minnesota, National Association, as Trustee and Collateral Agent
Series 1998-4 Supplement to the Master Agreement, dated as of December 1, 1998
Series 1998-3 Supplement to the Master Agreement, dated as of July 15, 1998
Series 1998-2 Supplement to the Master Agreement, dated as of May 1, 1998
Series 1998-1 Supplement to the Master Agreement, dated as of March 1, 1998
Series 1997-5 Supplement to the Master Agreement, dated as of December 1, 1997
Series 1997-4 Supplement to the Master Agreement, dated as of October 1, 1997
Series 1997-3 Supplement to the Master Agreement, dated as of August 1, 1997
Series 1997-2 Supplement to the Master Agreement, dated as of May 1, 1997
Series 1997-1 Supplement to the Master Agreement, dated as of March 1, 1997
Series 1996-3 Supplement to the Master Agreement, dated as of December 1, 1996
Series 1996-2A Supplement to the Master Agreement, dated as of September 1, 1996
Series 1996-2 Supplement to the Master Agreement, dated as of June 17, 1996
Series 1996-1 Supplement to the Master Agreement, dated as of March 28, 1996
Series 1995-4 Supplement to the Master Agreement, dated as of December 21, 1995
Series 1995-3 Supplement to the Master Agreement, dated as of September 18, 1995
Series 1995-2 Supplement to the Master Agreement, dated as of June 12, 1995
Series 1995-1 Supplement to the Master Agreement, dated as of February 3, 1995
Series 1994-4 Supplement to the Master Agreement, dated as of December 1, 1994
Series 1994-3 Supplement to the Master Agreement, dated as of October 5, 1994
Series 1994-2 Supplement to the Master Agreement, dated as of August 31, 1994
and LIMITED WAIVER
dated as of September 1, 1999
by
Financial Security Assurance Inc.
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AMENDMENT dated as of September 1, 1999 to:
(i) Master Spread Account Agreement, as amended and restated as of December
1, 1998 (the "Master Agreement") by and among CPS Receivables Corp. (the
"Company"), Financial Security Assurance Inc. ("Financial Security") and
Norwest Bank Minnesota, National Association, as Trustee and Collateral
Agent;
(ii) Series 1998-4 Supplement to the Master Agreement, dated as of December
1, 1998 (the "Series 1998-4 Supplement");
(iii) Series 1998-3 Supplement to the Master Agreement, dated as of July 15,
1998 (the "Series 1998-3 Supplement");
(iv) Series 1998-2 Supplement to the Master Agreement, dated as of May 1,
1998 (the "Series 1998-2 Supplement");
(v) Series 1998-1 Supplement to the Master Agreement, dated as of March 1,
1998 (the "Series 1998-1 Supplement");
(vi) Series 1997-5 Supplement to the Master Agreement, dated as of December
1, 1997 (the "Series 1997-5 Supplement");
(vii) Series 1997-4 Supplement to the Master Agreement, dated as of October 1,
1997 (the "Series 1997-4 Supplement");
(viii) Series 1997-3 Supplement to the Master Agreement, dated as of August 1,
1997 (the "Series 1997-3 Supplement");
(ix) Series 1997-2 Supplement to the Master Agreement, dated as of May 1,
1997 (the "Series 1997-2 Supplement");
(x) Series 1997-1 Supplement to the Master Agreement, dated as of March 1,
1997 (the "Series 1997-1 Supplement");
(xi) Series 1996-3 Supplement to the Master Agreement, dated as of December
1, 1996 (the "Series 1996-3 Supplement");
(xii) Series 1996-2A Supplement to the Master Agreement, dated as of September
1, 1996 (the "Series 1996-2A Supplement");
(xiii) Series 1996-2 Supplement to the Master Agreement dated as of June 17,
1996, as amended (the "Series 1996-2 Supplement");
(xiv) Series 1996-1 Supplement to the Master Agreement, dated as of March 28,
1996 (the "Series 1996-1 Supplement");
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(xv) Series 1995-4 Supplement to the Master Agreement, dated as of December
21, 1995 (the "Series 1995-4 Supplement");
(xvi) Series 1995-3 Supplement to the Master Agreement, dated as of September
18, 1995 (the "Series 1995-3 Supplement");
(xvii) Series 1995-2 Supplement to the Master Agreement, dated as of June 12,
1995 (the "Series 1995-2 Supplement");
(xviii) Series 1995-1 Supplement to the Master Agreement, dated as of February
3, 1995 (the "Series 1995-1 Supplement");
(xix) Series 1994-4 Supplement to the Master Agreement, dated as of December
1, 1994 (the "Series 1994-4 Supplement");
(xx) Series 1994-3 Supplement to the Master Agreement, dated as of October 5,
1994 (the "Series 1994-3 Supplement"); and
(xxi) Series 1994-2 Supplement to the Master Agreement, dated as of August 31,
1994 (the "Series 1994-2 Supplement");
in each case as amended to the date hereof and as hereinafter amended unless the
terms of any subsequent amendment conflict with the terms hereof, in which case
the terms of such subsequent amendment shall control (each a "Series Supplement"
and, collectively, the "Series Supplements") among Consumer Portfolio Services,
Inc., CPS Receivables Corp., Financial Security Assurance Inc. and Norwest Bank
Minnesota, National Association, as Trustee and as Collateral Agent; and LIMITED
WAIVER dated as of September 1, 1999 by Financial Security Assurance Inc. of
certain provisions of certain Insurance and Indemnity Agreements among Financial
Security, Consumer Portfolio Services, Inc. and such other Persons as may be a
party thereto, as more fully described in Section 5 hereto (this "Amendment and
Limited Waiver"). Terms used but not defined herein shall have the respective
meanings assigned thereto in the Master Agreement or the relevant Series
Supplement, as applicable.
WHEREAS, the respective parties to the Master Agreement and each
Series Supplement (the "Parties") have heretofore executed such agreements
(collectively, the "Series Supplements");
WHEREAS, the Master Agreement permits amendment of the Master
Agreement upon the terms and conditions specified therein;
WHEREAS, the Parties wish to amend the Master Agreement and the
Series Supplements;
WHEREAS, the respective parties to the Master Agreement and each
Series Supplement (the "Parties") have heretofore executed an Amendment dated as
of April 7, 1999 to the Series Supplement; and
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WHEREAS, Financial Security has agreed to waive certain
provisions of certain Insurance and Indemnity Agreements.
NOW, THEREFORE, the Parties agree that effective as of the
Effective Date, the Master Agreement and the Series Supplements are hereby
further amended and that the provisions referenced in Section 5 hereto are
waived by Financial Security, in each case, as follows:
Section 1. Amendment to Definition of "Requisite Amount". The
definition of "Requisite Amount" is hereby amended in the following manner:
(a) with respect to each of the Master Agreement, the Series
1994-2 Supplement, the Series 1994-3 Supplement, the Series 1994-4 Supplement,
the Series 1995-1 Supplement, the Series 1995-2 Supplement, the Series 1995-3
Supplement, the Series 1995-4 Supplement, the Series 1996-1 Supplement, the
Series 1996-2 Supplement, the Series 1996-2A Supplement, the Series 1996-3
Supplement, the Series 1997-1 Supplement, the Series 1997-2 Supplement and the
Series 1998-2 Supplement, clause (b) of the definition of Requisite Amount is
amended and restated, in each case, by deleting it in its entirety and replacing
it with the following:
"(b)(i) if no Insurance Agreement Event of Default shall have
occurred as of such Determination Date, 21% of the Certificate Balance;
or (ii) if an Insurance Agreement Event of Default shall have occurred
as of such Determination Date, an unlimited amount.";
(b) with respect to each of the Series 1997-3 Supplement, the
Series 1997-4 Supplement, the Series 1997-5 Supplement and the Series 1998-1
Supplement: clause (2) of the definition of Requisite Amount is amended and
restated, in each case, by deleting it in its entirety and replacing it with the
following:
(i) with respect to the Series 1998-1 Supplement:
"(2)(A) if no Insurance Agreement Event of Default shall have
occurred as of such Determination Date, 21% of the Certificate Balance;
or (B) if an Insurance Agreement Event of Default shall have occurred as
of such Determination Date, an unlimited amount.";
(ii) with respect to each of the Series 1997-5 Supplement, the
Series 1997-4 Supplement and the Series 1997-3 Supplement:
"(2)(A) if no Insurance Agreement Event of Default shall have
occurred as of such Determination Date, 21% of the Pool Balance, minus
the positive difference, if any, of (i) the Pool Balance and (ii) the
Securities Balance; or (B) if an Insurance Agreement Event of Default
shall have occurred as of such Determination Date, an unlimited
amount.";
(c) for each Series Supplement, the definition of Requisite
Amount is amended by adding the following paragraph to the end thereof:
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"Notwithstanding anything contained herein or in the Related
Documents with respect to each Series to the contrary, (i) assets other
than cash or Eligible Investments, if any, on deposit in any Spread
Account (as defined in the Spread Account Agreement) or otherwise
pledged to the Collateral Agent shall not be included in any calculation
of Requisite Amount hereunder and (ii) the term "Insurance Agreement
Event of Default" as used in this definition shall be deemed to refer to
only an Insurance Agreement Event of Default that is not a Waived
Insurance Agreement Event of Default."
Section 2. Addition of Definition of "Waived Insurance Agreement
Event of Default". The Master Agreement is amended and restated by inserting the
following definition in Section 1.01 thereof:
"Waived Insurance Agreement Event of Default" means either or
both of (i) with respect to any Series (unless specified otherwise in
the related Series Supplement), an Event of Default caused by the
failure of the Servicer to deliver Liquidation Proceeds or Purchase
Amounts to the Collection Account within the period specified in and
pursuant to the terms of the Related Documents; provided, however, that
this definition shall (A) only include and apply to any such failure
which shall have occurred on or prior to August 31, 1999; and (B) only
apply so long as the Servicer complies fully with the provisions of
Section 6 of that certain Amendment and Limited Waiver dated September
1, 1999 (the "September 1999 Amendment and Limited Waiver") among
Consumer Portfolio Services, Inc., CPS Receivables Corp., Financial
Security Assurance Inc. and Norwest Bank Minnesota, National
Association, as Trustee and as Collateral Agent, or (ii) an Event of
Default under any Insurance Agreement where such default has been duly
waived (including, without limitation, the limited waiver pursuant to
Section 5 of the September 1999 Amendment and Limited Waiver).
Section 3. Amendment to Definition of "Spread Account Shortfall".
The definition of "Spread Account Shortfall" is hereby amended in the following
manner:
(a) With respect to the Master Agreement, the definition of
Spread Account Shortfall is amended and restated by deleting it in its entirety
and replacing it with the following:
""Spread Account Shortfall" means, with respect to any Series
(unless specified otherwise in the related Series Supplement) and any
Determination Date, an amount equal to the excess of (1) the Requisite
Amount with respect to such Distribution Date over (2) the amount on
deposit in the Spread Account after making any withdrawals therefrom
required by priority THIRD of Section 3.03(b)."
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(b) Each of the Series 1998-3 Supplement and the Series 1998-4
Supplement, is amended and restated, in each case, by inserting the following
definition in Section 1 of each such Series Supplement (substituting, in each
case, the applicable Series designation (e.g. "Series 1998-3" with respect to
the Series 1998-3 Supplement) for the bracketed text contained in such
definition):
""Spread Account Shortfall" means, with respect to [INSERT
APPLICABLE SERIES DESIGNATION] and any Determination Date with respect
to which (a) a Trigger Event has occurred and has not been deemed cured
or (b) an Insurance Agreement Event of Default has occurred and is
continuing, an amount equal to the excess of (1) the Requisite Amount
with respect to such Distribution Date over (2) the amount on deposit in
the [INSERT APPLICABLE SERIES DESIGNATION] Spread Account after making
any withdrawals therefrom required by priority THIRD of Section 3.03(b)
of the Spread Account Agreement. Notwithstanding anything contained
herein to the contrary, the term "Insurance Agreement Event of Default"
as used in this definition shall be deemed to refer to only an Insurance
Agreement Event of Default that is not a Waived Insurance Agreement
Event of Default."
Section 4. Amendment to Section 3.03 of the Master Agreement.
Subparagraph FOURTH of Section 3.03(b) of the Master Agreement is hereby amended
and restated by deleting it in its entirety and replacing it with the following:
"FOURTH, if with respect to one or more Series there exists a
Spread Account Shortfall, from amounts, if any, (1) on deposit in each
Spread Account (other than any Non-Crosscollateralized Spread Account,
except as provided in the second proviso to priority SEVENTH), in excess
of the related Requisite Amount or (2) on deposit in any Spread Account
(other than any Non-Crosscollateralized Spread Account, except as
provided in the second proviso to priority SEVENTH) with respect to
which the Final Termination Date shall have occurred on such
Distribution Date or a prior Distribution Date, an amount determined in
the discretion of Financial Security (which shall not exceed the
aggregate of the Spread Account Shortfalls for all Series) for deposit
into such Spread Accounts with respect to which there exists a Spread
Account Shortfall as shall be selected by Financial Security in its
discretion in such respective amounts up to the related Spread Account
Shortfall as shall be determined by Financial Security."
Section 5. Limited Waiver. In addition to and not in limitation
of the foregoing, Financial Security hereby irrevocably waives each "Event of
Default" set forth and as defined in the Series 1994-1 Insurance Agreement, the
Series 1994-2 Insurance Agreement, the Series 1994-3 Insurance Agreement, the
Series 1994-4 Insurance Agreement, the Series 1995-1 Insurance Agreement, the
Series 1995-2 Insurance Agreement, the Series 1995-3 Insurance Agreement, the
Series 1995-4 Insurance Agreement, the Series 1996-1 Insurance Agreement, the
Series 1996-2 Insurance
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Agreement, the Series 1996-2A Insurance Agreement, the Series 1996-3 Insurance
Agreement, the Series 1997-1 Insurance Agreement, the Series 1997-2 Insurance
Agreement, the Series 1997-3 Insurance Agreement, the Series 1997-4 Insurance
Agreement, the Series 1997-5 Insurance Agreement, the Series 1998-1 Insurance
Agreement and the Series 1998-2 Insurance Agreement (each as defined in the
related Series Supplement) pertaining to Average Delinquency Ratio, Cumulative
Default Rate and Cumulative Net Loss Rate levels (each as set forth in the
related Series Supplement and as defined in the Master Agreement) or otherwise
defined but pertaining to the level of delinquencies, defaults or losses
experienced by the related pool of receivables, in each case, whether occurring
before, on or after the date hereof; provided, however, that the limited waiver
contained in this Section 5 shall be effective solely for the purpose of causing
each such Event of Default and each Event of Default under any other Insurance
Agreement (as defined in the Master Agreement) caused by such Event of Default
and the applicable cross-default provisions of the related Insurance Agreement
to be deemed to be a Waived Insurance Agreement Event of Default and not for any
other purpose.
Section 6. Purchased and Liquidated Receivables. In consideration
of the agreements contained herein and as a condition precedent to the continued
effectiveness of this Amendment and Limited Waiver, Consumer Portfolio Services,
Inc. ("CPS") agrees, with respect to each Series, to charge off and otherwise
account for all Receivables which qualify as Purchased Receivables or Liquidated
Receivables but, in each case, which have not been treated by CPS as such in
accordance with the terms of the Related Documents with respect to each Series
(the "Charged Off Receivables"), in accordance with the terms of such Related
Documents and in the stages set forth on the following schedule; provided,
however, that notwithstanding anything contained herein to the contrary, any
Purchased Receivables or Liquidated Receivables arising subsequent to the date
hereof shall be treated by CPS as such in accordance with the terms of the
applicable Related Documents:
PERCENTAGE OF CHARGED OFF RECEIVABLES
COLLECTION PERIOD ENDED: REMAINING
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September 30, 1999 75%
October 31, 1999 50%
November 30, 1999 25%
December 31, 1999 0%
Subject to Sections 2, 3 and 5 hereof, in no event shall the
provisions of this Section 6 be construed to constitute a waiver of any rights
granted to Financial Security under the terms of the any Related Documents.
Section 7. Effective Date. Notwithstanding anything herein to the
contrary, this Amendment and Limited Waiver shall not be effective until the
date (the "Effective Date"), if any, on which the Company shall have obtained
the satisfaction or waiver of each condition to the effectiveness of this
Amendment and Limited Waiver required by the Master Agreement and the Series
Supplements necessary to be obtained from any Person other than Financial
Security. Subject to the satisfaction of the conditions specified herein, in the
Spread Account Agreement or in any Series
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Supplement, Financial Security hereby consents to the effectiveness of this
Amendment and Limited Waiver and waives any requirement that any rating be
confirmed with respect to the securities of any Series that are not guaranteed
by Financial Security.
Section 8. Counterparts. This Amendment and Limited Waiver may be
executed in several counterparts, each of which shall be deemed an original
hereof and all of which, when taken together, shall constitute one and the same
Amendment and Limited Waiver.
Section 9. Ratification of Master Agreement and Series
Supplements. Except as provided herein, all provisions, terms and conditions of
the Master Agreement and the Series Supplements shall remain in full force and
effect. As amended hereby, the Master Agreement and the Series Supplements are
ratified and confirmed in all respects.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment and Limited Waiver specified above as of the date set forth on the
first page hereof.
FINANCIAL SECURITY ASSURANCE INC.
By: /s/
-------------------------------
Authorized Officer
CPS RECEIVABLES CORP.
By: /s/
-------------------------------
Name:
Title:
CONSUMER PORTFOLIO SERVICES, INC.
By: /s/
-------------------------------
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By: /s/
-------------------------------
Name:
Title: