EXHIBIT 10.36
SECOND OMNIBUS AMENDMENT AGREEMENT
containing
AMENDMENT NO. 3 TO THE SALE AND SERVICING AGREEMENT and
SUPPLEMENTAL INDENTURE NO. 2
dated as of October 31, 2002
among
CPS WAREHOUSE TRUST, as
Purchaser and Issuer,
CONSUMER PORTFOLIO SERVICES, INC., as
Seller and Servicer
SYSTEMS & SERVICES TECHNOLOGIES, INC., as
Backup Servicer
BANK ONE TRUST COMPANY, N.A., as
Standby Servicer and Trustee
WESTLB AG, as
Agent
SECOND OMNIBUS AMENDMENT AGREEMENT
SECOND OMNIBUS AMENDMENT AGREEMENT, dated as of October 31, 2002 (the
"AMENDMENT") among CPS WAREHOUSE TRUST, a Delaware business trust (in its
capacities as the Issuer, the "ISSUER" and as Purchaser, the "PURCHASER,"
respectively), CONSUMER PORTFOLIO SERVICES, INC., a California corporation (in
its capacities as Seller, the "SELLER" and as Servicer, the "SERVICER,"
respectively), SYSTEMS & SERVICES TECHNOLOGIES, INC., a Delaware corporation
("SST"), as Backup Servicer, and BANK ONE TRUST COMPANY, N.A., a national
banking association, (in its capacities as Standby Servicer, the "STANDBY
SERVICER" and as Trustee, the "TRUSTEE," respectively) and WESTLB AG (F/K/A
WESTDEUTSCHE LANDESBANK GIROZENTRALE) ( the "AGENT"), as it may be amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
RECITALS
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WHEREAS, the Purchaser, the Seller, the Servicer, SST, the Standby
Servicer and the Trustee (collectively, the "SSA AMENDING PARTIES") have entered
into the Sale and Servicing Agreement dated as of March 7, 2002, as the same may
be further amended, amended and restated, supplemented or otherwise modified
from time to time in accordance with its terms (the "SALE AND SERVICING
AGREEMENT") and the SSA Amending Parties desire to amend the Sale and Servicing
Agreement in certain respects as provided below with the consent of the
Noteholder and the Controlling Party;
WHEREAS, the Issuer, the Agent and the Trustee (collectively, the
"INDENTURE AMENDING PARTIES" and together with the SSA Amending Parties, the
"AMENDING PARTIES") have entered into the Indenture, dated as of March 7, 2002,
as the same may be further amended, amended and restated, supplemented or
otherwise modified from time to time in accordance with its terms (the
"INDENTURE");
WHEREAS, SECTION 9.2 of the Indenture permits the Issuer and the
Trustee, with the consent of the Controlling Party and the Holder, and notice
given to the Rating Agencies, to enter into one or more indentures supplemental
to the Indenture;
WHEREAS, the Issuer wishes to amend certain provisions of the
Indenture; and
WHEREAS, the parties to the Note Purchase Agreement and the Liquidity
Asset Purchase Agreement (collectively, the "OTHER DOCUMENTS"), desire to
acknowledge and consent to this Amendment.
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AGREEMENTS
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In consideration of the premises, and for other good and valuable
consideration, the adequacy, receipt and sufficiency of which are hereby
acknowledged, the Amending Parties agree as follows:
ARTICLE I
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DEFINITIONS
SECTION 1.1. DEFINED TERMS. Unless 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 ANNEX A to the Sale and
Servicing Agreement, as identifiable from the context in which such term is
used.
ARTICLE II
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AMENDMENTS
SECTION 2.1. AMENDMENTS TO ANNEX A TO THE SALE AND SERVICING AGREEMENT.
(a) A new definition of "Ineligible Receivables" is hereby
added to Annex A to the Sale and Servicing Agreement to read as follows:
"INELIGIBLE RECEIVABLE" means any Receivable other than an
Eligible Receivable.
(b) Intentionally omitted.
(c) Intentionally omitted.
(d) Intentionally omitted.
(e) Intentionally omitted.
(f) Clause (i) of the definition of "Defaulted Receivable" is
hereby amended and restated in its entirety to read as follows:
(i) more than 10% of a Scheduled Receivable Payment is more
than 90 days past due as of the end of the immediately preceding
Accrual Period,
(g) Clause (ii) of the definition of "Liquidated Receivable"
is hereby amended and restated in its entirety to read as follows:
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(ii) the related Financed Vehicle has been repossessed and 90
days have elapsed since the date of such repossession,
(h) The dollar amount referenced in the definition of "Maximum
Invested Amount" is hereby increased from $100,000,000 to $125,000,000.
SECTION 2.2. AMENDMENT TO SALE AND SERVICING AGREEMENT.
(a) Section 4.11(a) of the Sale and Servicing Agreement is
hereby amended and restated in its entirety to read as follows:
Section 4.11 INDEPENDENT ACCOUNTANT'S REPORTS. (a) Unless SST
or the Standby Servicer is the Servicer, the Servicer shall cause a
firm of nationally recognized independent certified public accountants
(the "INDEPENDENT ACCOUNTANTS"), who may also render other services to
the Servicer or to the Purchaser, to deliver to the Trustee, the
Standby Servicer, the Insurer, the Agent, the Noteholder and each
Rating Agency, on or before March 31 of each year beginning March 31,
2003, a report dated as of December 31 of the preceding year (the
"ACCOUNTANTS' REPORT") and reviewing the Servicer's activities during
the preceding 12-month period (or, in the case of the first such
report, the period from the Cutoff Date with respect to Receivables
transferred to the Purchaser on the initial Funding Date to December
31, 2002), addressed to the Board of Directors of the Servicer, to the
Trustee, the Standby Servicer and to the Insurer, to the effect that
such firm has examined the financial statements of the Servicer and
issued its report therefor and that such examination (1) was made in
accordance with generally accepted auditing standards, and accordingly
included such tests of the accounting records and such other auditing
procedures as such firm considered necessary in the circumstances; (2)
included tests relating to auto loans serviced for others in accordance
with the requirements of the Uniform Single Attestation Program for
Mortgage Bankers (the "PROGRAM"), to the extent the procedures in the
Program are applicable to the servicing obligations set forth in this
Agreement; (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 (4) except as described in the
report, disclosed no exceptions or errors in the records relating to
automobile and light truck loans serviced for others that, in the
firm's opinion, paragraph four of the Program requires such firm to
report. In the event such firm requires the Trustee and/or the Standby
Servicer to agree to the procedures performed by such firm, the
Servicer shall direct the Trustee and/or the Standby Servicer, as
applicable, in writing to so agree; it being understood and agreed that
the Trustee and/or the Standby Servicer will deliver such letter of
agreement in conclusive reliance upon the direction of the Servicer,
and neither the Trustee nor the Standby Servicer makes any independent
inquiry or investigation as to, and shall have no obligation or
liability in respect of, the sufficiency, validity or correctness of
such procedures.
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The report will also indicate that the firm is independent of
the Servicer within the meaning of the Code of Professional Ethics of
the American Institute of Certified Public Accountants.
(b) A new Section 5.11 is hereby added to the Sale and
Servicing Agreement to read as follows:
Section 5.11 DIVIDEND OF INELIGIBLE RECEIVABLES. With the
prior written consent of the Controlling Party, the Issuer may, on the
last day of the month in which any Receivables are sold into a term
securitization transaction, commencing in August 2002, distribute any
Ineligible Receivables to the Certificateholder (as such term is
defined in the Trust Agreement) as a dividend.
SECTION 2.3. AMENDMENT TO SECTION 2.10 OF THE INDENTURE. Section 2.10
of the Indenture is hereby amended and restated in its entirety to read as
follows:
Section 2.10 RELEASE OF COLLATERAL. Subject to the terms of
the other Basic Documents and SECTIONS 10.1 AND 11.1, the Trustee
shall, on or after the Termination Date, release any remaining portion
of the Trust Estate from the lien created by this Indenture and deposit
in the Collection Account any funds then on deposit in any other
Pledged Account. In addition, the Trustee shall release Ineligible
Receivables from the lien created by this Indenture upon any dividend
of such Ineligible Receivables pursuant to Section 5.11 of the Sale and
Servicing Agreement. The Trustee shall release property from the lien
created by this Indenture pursuant to this SECTION 2.10 only upon
receipt of any Issuer Request accompanied by an Officer's Certificate
meeting the applicable requirements of SECTION 11.1.
SECTION 2.4. AMENDMENT TO SECTION 10.4 OF THE INDENTURE. Section 10.4
of the Indenture is hereby amended and restated in its entirety to read as
follows:
Section 10.4 PREPAYMENT UPON PURCHASE OR SECURITIZATION OF
RECEIVABLES. The Noteholder may from time to time, with the prior
written consent of the Controlling Party, not to be unreasonably
withheld, direct the Issuer to sell all or a portion of the Mercury
Receivables to one or more Affiliates of the Issuer. In addition, the
Noteholder may from time to time, with the prior written consent of the
Controlling Party, not to be unreasonably withheld, direct the Issuer
to sell all or a portion of the Receivables into a term securitization
transaction approved by the Noteholder, the Agent and the Controlling
Party in which equity and/or any residual interest therein is retained
by the Issuer or an Affiliate of the Issuer. Upon such direction, the
Noteholder shall deliver a notice of prepayment of the Note in
accordance with Section 10.2 and the Note shall be repaid in full or in
part in accordance with this Article X.
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SECTION 2.5. CONSENT OF THE INDENTURE AMENDING PARTIES. The Indenture
Amending Parties hereby consent to the amendments set forth in Sections 2.1 and
2.2 hereof.
ARTICLE III
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CONDITION TO EFFECTIVENESS
SECTION 3.1. EXECUTION OF AMENDMENT BY AMENDING PARTIES. This Amendment
shall become effective upon (a) receipt by the Noteholder, the Controlling
Party, the Liquidity Agent, the Administrator and the Purchaser of executed
counterparts of this Amendment and (b) receipt by the Trustee, the Noteholder
and the Controlling Party of a certificate by the Seller that prior notice of
this Amendment has been given to the Rating Agencies in accordance with Section
9.1(b) of the Indenture.
ARTICLE IV
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MISCELLANEOUS
SECTION 4.1. RATIFICATION. Except as expressly set forth herein, this
Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of any of the Amending
Parties under the Sale and Servicing Agreement or the Indenture, nor alter,
modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Sale and Servicing Agreement or the
Indenture, all of which are hereby ratified and affirmed in all respects by each
of the Amending Parties and shall continue in full force and effect. This
Amendment shall apply and be effective only with respect to the provisions of
the Sale and Servicing Agreement and the Indenture specifically referred to
herein and any references in the Sale and Servicing Agreement and the Indenture
to the provisions of the Sale and Servicing Agreement and the Indenture
specifically referred to herein shall be to such provisions as amended by this
Amendment. Notwithstanding the preceding sentence, this Amendment shall apply
and be effective with respect to the provisions of the Other Documents.
SECTION 4.2. 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.
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SECTION 4.3. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAW (INCLUDING, WITHOUT LIMITATION, THE UCC) OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO THE PROVISIONS THEREOF REGARDING CONFLICTS OF
LAWS), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAW.
SECTION 4.4. WAIVER OF NOTICE. Each of the Amending Parties waives any
prior notice and any notice period that may be required by any other agreement
or document in connection with the execution of this Amendment.
SECTION 4.5. HEADINGS. The headings of Sections contained in this
Amendment are provided for convenience only. They form no part of this
Amendment, the Sale and Servicing Agreement or the Indenture and shall not
affect the construction or interpretation of this Amendment, the Sale and
Servicing Agreement or the Indenture or any provisions hereof or thereof.
[Remainder of Page Intentionally Left Blank]
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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.
CPS WAREHOUSE TRUST
By: Wilmington Trust Company, not in
its individual capacity but solely as
Owner Trustee
By:_______________________________
Name:
Title:
CONSUMER PORTFOLIO SERVICES, INC.,
as Seller
By:________________________________
Name:
Title:
CONSUMER PORTFOLIO SERVICES, INC.,
as Servicer
By:________________________________
Name:
Title:
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BANK ONE TRUST COMPANY, N.A.,
not in its individual capacity, but
solely as Standby Servicer and Trustee
By:_______________________________
Name:
Title:
SYSTEMS & SERVICES
TECHNOLOGIES, INC., as
Backup Servicer
By:_______________________________
Name:
Title:
WESTLB AG, NEW YORK BRANCH, as
Agent
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
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CONSENTED AND AGREED TO:
PARADIGM FUNDING LLC, as Noteholder
By:___________________________________
Name:
Title:
XL CAPITAL ASSURANCE INC., as Controlling Party
By:____________________________________
Name:
Title:
WESTLB AG, NEW YORK BRANCH, as Committed Note Purchaser
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
0
XXXXXX XX, XXX XXXX BRANCH, as Liquidity Agent
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
WESTLB AG, NEW YORK BRANCH, as Administrator
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
00
XXXXXX XX, XXX XXXX BRANCH, as Purchaser
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
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