AMENDMENT NO. 7 dated as of February 15, 2008 among PAGE FUNDING LLC, as Purchaser and Issuer, CONSUMER PORTFOLIO SERVICES, INC., as Seller and Servicer, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Backup Servicer and Trustee to the Amended and...
Exhibit 10.5.4
AMENDMENT
NO. 7
dated as
of February 15, 2008
among
PAGE FUNDING
LLC,
as
Purchaser and Issuer,
CONSUMER PORTFOLIO SERVICES,
INC.,
as
Seller and Servicer,
and
XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
as Backup
Servicer and Trustee
to
the
Amended
and Restated Sale and Servicing Agreement
dated as
of February 14, 2007
AMENDMENT
NO. 7 TO
AMENDED
AND RESTATED SALE AND SERVICING AGREEMENT
AMENDMENT
NO. 7, dated as of February 15, 2008 (the “Amendment”) by and
among PAGE FUNDING LLC, a Delaware limited liability company (in its capacities
as Purchaser, the “Purchaser” and as
Issuer, the “Issuer,”
respectively), CONSUMER PORTFOLIO SERVICES, INC., a California corporation (in
its capacities as Seller, the “Seller” and as
Servicer, the “Servicer,”
respectively), XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking
association (in its capacities as Backup Servicer, the “Backup Servicer” and
as Trustee, the “Trustee,”
respectively).
PRELIMINARY
STATEMENT
Reference is made to the Amended and
Restated Sale and Servicing Agreement dated as of February 14, 2007, among PAGE
FUNDING LLC, CONSUMER PORTFOLIO SERVICES, INC., and XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as previously amended by Amendment No. 1 thereto, dated as of March
30, 2007, by Amendment No. 2 thereto, dated as of June 29, 2007, by Amendment
No. 3 thereto, dated as of September 30, 2007, by Amendment No. 4 thereto, dated
as of January 11, 2008, by Amendment No. 5 thereto, dated as of January 24,
2008, and by Amendment No. 6 thereto, dated as of January 31,
2008 (as so amended, the “Sale and Servicing
Agreement”).
Reference is also made to the Note
Purchase Agreement dated as of February 14, 2007, among the Issuer and
Purchaser, the Seller and Servicer, The Patriot Group LLC ("Patriot"), as a Class
B Note Purchaser and as a Class B Noteholder, and Waterfall Eden Fund, LP
("Waterfall"),
as a Class B Note Purchaser and as a Class B Noteholder (the “Note Purchase
Agreement”).
RECITALS
WHEREAS,
PAGE FUNDING LLC, CONSUMER PORTFOLIO SERVICES, INC., and XXXXX FARGO BANK,
NATIONAL ASSOCIATION (collectively, the “Amending Parties”)
have executed the Sale and Servicing Agreement and the Amending Parties desire
to amend the Sale and Servicing Agreement in certain respects as provided below,
with the effect of extending the Commitment referenced in Section
2.05 of the Note Purchase Agreement;
WHEREAS,
Waterfall and Eden desire to consent to this Amendment, and as the Class B Note
Purchasers desire to consent to the resulting extension of their several
Commitments under the Note Purchase Agreement; and
WHEREAS,
UBS REAL ESTATE SECURITIES INC., as Controlling Note Purchaser and Majority
Noteholder of the Highest Priority Class, desires to consent to this
Amendment.
ARTICLE
I - DEFINITIONS
SECTION
1.1. Defined
Terms. Unless otherwise defined in this Amendment, capitalized
terms used in this Amendment (including in the Preamble and the Recitals) shall
have the meaning given such terms in the Annex A to the Sale and Servicing
Agreement, as identifiable from the context in which such term is
used.
ARTICLE II-
AMENDMENT
SECTION
2.1 Amendment to Annex A to the
Sale and Servicing Agreement. In Annex A to the Sale and
Servicing Agreement, the definitions of the following terms:
Class B
Applicable Margin
Class B
Default Applicable Margin
Class B
Scheduled Maturity Date
are
hereby amended and restated in their entirety to read as follows:
“Class B Applicable
Margin” means (I) with respect to any day on or prior to the effective
date of this Amendment, 10.00%; and (II) with respect to any day after the
effective date of this Amendment, 12.00%; provided (III) that on any day on
which an Event of Default shall exist, the Class B Applicable Margin shall be
the Class B Default Applicable Margin.
“Class B Default Applicable
Margin” means (I) with respect to any day on or prior to the effective
date of this Amendment, 12.00%; and (II) with respect to any day on or
after the effective date of this Amendment, 14.00%.
“Class B Scheduled Maturity
Date” means the first to occur of (i) the closing of a Securitization
Transaction subsequent to the date of this Amendment or (ii) March 15, 2008; or
such later date as agreed upon pursuant to Section 2.05 of the Class B Note
Purchase Agreement.
ARTICLE III-
EFFECTIVENESS
Effective
Date. This Amendment shall be effective as of the date first
written above upon execution and delivery of this Amendment by the Amending
Parties hereto, by Waterfall, by Patriot and by UBS Real Estate Securities
Inc.
ARTICLE VI -
MISCELLANEOUS
SECTION
4.1. Ratification;
Representations and Warranties, Etc.
(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, the
Sale and Servicing Agreement, as amended hereby, and the Basic Documents,
(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; and
(e) The
parties hereto, including without limitation Xxxxx 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) in the Basic
Documents shall be deemed to refer to such documents or instruments as amended
by this Amendment.
SECTION
4.2. 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 other Basic Documents.
SECTION
4.3. 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
4.4. 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.
SECTION 4.5. 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 or 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
4.6. Binding
Effect. This Amendment and the other Basic Documents shall be
binding upon and shall be enforceable by Purchaser, Seller, Issuer, Servicer,
Note Purchasers, the Backup Servicer and the Trustee and their respective
successors and permitted assigns.
SECTION
4.7. 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
4.8. 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
4.9. 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 page intentionally left blank.]
IN
WITNESS WHEREOF, the Amending Parties have caused this Amendment to be duly
executed by their respective duly authorized officers as of the day and year
first above written.
PAGE FUNDING LLC, as Purchaser and as
Issuer
By: /s/ Xxxx
Xxxxxxxx
Title: Vice
President
CONSUMER
PORTFOLIO SERVICES, INC., as Seller and as Servicer
By: /s/ Xxxx Xxxxx
Title: Sr.
Vice President & CFO
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity, but solely as
Trustee, Backup Servicer and Deposit Account Bank
By: /s/ Xxxxx X. Xxxxxx
Xxxxxxx
Name: Xxxxx
X. Xxxxxx
Xxxxxxx
Title: Assistant Vice
President
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, as Lockbox Processor and Bank
By:
Name:
Title:
CONSENTED
TO BY:
UBS REAL
ESTATE SECURITIES INC.,
as
Controlling Note Purchaser and Majority Noteholder of the Highest Priority
Class
and as
the Class A Note Purchaser under the Note Purchase Agreement
By: /s/ Xxxxxx
Xxxx
Name: Xxxxxx
Xxxx
Title: Director
By: /s/ Verdi
Contente
Name: Verdi
Contente
Title: Associate
Director
CONSENTED
TO BY:
THE
PATRIOT GROUP, LLC, as a Class B Note Purchaser and as Holder of a 50%
Percentage Interest of the Class B Notes
By: /s/ Xxxxx
X. Xxxx
Name: Xxxxx
X.
Xxxx
Title: Managing
Director
CONSENTED
TO BY:
WATERFALL
EDEN FUND, LP, as a Class B Note Purchaser and as Holder of a 50% Percentage
Interest of the Class B Notes
By:
WATERFALL MANAGEMENT, LLC, as general partner
By: /s/ Xxxx
Xxxx
Name:
Xxxx
Xxxx
Title: Principal
