Exhibit 10.5
WAIVER WITH RESPECT TO
NOTE PURCHASE AGREEMENT
This WAIVER WITH RESPECT TO NOTE PURCHASE AGREEMENT (this "Waiver") is made
as of March [28], 2003, to that certain Note Purchase Agreement, dated as of
August 24, 2000, between The Finance Company (the "Company") and N M Rothschild
& Sons Limited ("Rothschild"), as amended by letter agreement dated February 22,
2002 (the "Note Purchase Agreement").
W I T N E S S E T H:
WHEREAS, the Company and Rothschild have entered into the Note Purchase
Agreement;
WHEREAS, the Company has informed Rothschild that the Company expects to
enter into a merger agreement (the "Merger Agreement") with Consumer Portforlio
Services, Inc. ("CPS"), pursuant to which CPS will acquire the Company (such
acquisition, if any, the "TFC Acquisition Transaction");
WHEREAS, the Company has further informed Rothschild that the Company
expects to receive from its independent accountants, with respect to the audited
financial statements for the Company for fiscal year 2002, an opinion that is
qualified as to going concern (such opinion letter, if any, the "Going Concern
Letter"); and
WHEREAS, Rothschild wishes to waive a certain Event of Default under the
Note Purchase Agreement that may directly result from the Company's receipt of
the Going Concern Letter, if any, to the extent provided herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1.01. Defined Terms. For purposes of this Waiver, unless the
context clearly requires otherwise, all capitalized terms which are used but not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Note Purchase Agreement.
Section 1.02. Waiver of Events of Default.
(a) (i) To the extent that the Company's receipt of the Going Concern
Letter, if any, will directly cause a Material Adverse Effect that results in an
Event of Default under Section 11(k) of the Note Purchase Agreement, Rothschild,
subject to Section 1.02(b) of this Waiver, hereby waives such Event of Default.
(b) Notwithstanding any contrary provision herein, the waiver
contained in Section 1.02(a) shall be effective only during the period from and
including the date on which
the Company delivers to Rothschild a copy of the Going Concern Letter, if any,
to but excluding the earliest of (i) [April 14, 2003], if the Merger Agreement
has not been executed by that date, (ii) the date of closing of the TFC
Acquisition Transaction, if such date is on or before [May 31, 2003], and (iii)
[May 31, 2003], if the TFC Acquisition Transaction has not closed by that date.
(c) Nothing contained in this Section 1.02 shall constitute a waiver
of any Event of Default under any provision of the Note Purchase Agreement other
than Sections 11(k) thereof. Nothing contained in this Section 1.02 shall
constitute a waiver of any Event of Default pursuant to Section 11(k) of the
Loan Agreement that may arise from any Material Adverse Effect other than one
caused directly by the Company's receipt of the Going Concern Letter, if any.
Section 1.03. Effect of Waiver. In all respects the Loan Agreement remains
in full force and effect and, except as waived pursuant hereto during the period
set forth in Section 1.02(b) hereof, is unchanged.
Section 1.04. Governing Law. This Waiver shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to the conflicts of law principles thereof.
Section 1.05. Counterparts. This Waiver may be executed in any number of
counterparts, each of which shall be an original and all of which taken together
shall constitute but one and the same instrument.
IN WITNESS WHEREOF, N M Rothschild has caused this Waiver to be duly
executed by its officers thereunto duly authorized, as of the day first above
written.
N M ROTHSCHILD & SONS LIMITED
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxxxx Aish
Name: Xxxxxxx Aish
Title: Director
Consented to as of the date first above for the purpose of providing the consent
required by Section 19.1 of the Note Purchase Agreement for the waivers
contained herein:
THE FINANCE COMPANY
By:________________________________
Name:
Title:
[NOTEHOLDER]
By:________________________________
Name:
Title:
[NOTEHOLDER]
By:________________________________
Name:
Title:
[NOTEHOLDER]
By:________________________________
Name:
Title:
