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EXHIBIT 10.1
AMENDMENT NO. 2
TO THE
RECEIVABLES FUNDING AND SERVICING AGREEMENT,
AS AMENDED
dated as of July 17, 1998
AMENDMENT NO. 2 TO THE RECEIVABLES FUNDING AND SERVICING
AGREEMENT, AS AMENDED, dated as of July 17, 1998 ("Amendment No. 2") to that
certain Receivables Funding and Servicing Agreement, as amended, dated as of
November 24, 1997 (the "Receivables Funding and Servicing Agreement") among CPS
WAREHOUSE CORP., a Delaware corporation (the "Borrower"), the financial
institutions listed on the signature pages of this Agreement under the heading
"Investors" and their respective successors and assigns; VARIABLE FUNDING
CAPITAL CORPORATION, a Delaware corporation, ("VFCC") as lender (a "Lender"),
FIRST UNION CAPITAL MARKETS, a division of WHEAT FIRST SECURITIES, INC.
("FCMC"), as deal agent (the "Deal Agent"); FIRST UNION NATIONAL BANK ("First
Union"), as the liquidity agent (the "Liquidity Agent") and as the collateral
agent (the "Collateral Agent") and CONSUMER PORTFOLIO SERVICES, INC., a
California corporation (as such, together with its successors and assigns, the
"Parent"), as servicer hereunder (as such, together with its successors and
permitted assigns, the "Servicer").
PRELIMINARY STATEMENTS
WHEREAS, the parties hereto have entered into that certain
Receivables Funding and Servicing Agreement, whereby the Lenders make advances
to the Borrower and such advances are secured by certain receivables and other
collateral owned by the Borrower;
WHEREAS, pursuant to Section 2.01(c) of the Receivables
Funding and Servicing Agreement, the Borrower may by written notice to the Deal
Agent, request an increase in the Maximum Facility Amount; and
WHEREAS, Section 14.06 provides the Receivables Funding and
Servicing Agreement may be amended in writing by the parties thereto;
NOW, THEREFORE, in consideration of the promises and the
mutual agreements hereinafter set forth, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Definitions. Unless otherwise defined herein, all
capitalized terms shall have the meaning set forth in the Receivables Funding
and Servicing Agreement thereto.
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2. Amendment to Receivables Funding and Servicing Agreement.
(a) Section 1.01 is hereby amended by:
(i) deleting the definition of "Advance Rate" and by
replacing such definition with the following:
"Advance Rate" means, for any Receivable within a
Subgroup of Receivables and date within a Report Period, a percentage
equal to the lesser of (a) 95% and (b) 1 minus the product of (i) three
(3) and (ii) the Net Loss Factor applicable to the related Subgroup of
Receivables during such Report Period.
(ii) deleting the definition of "CP Rate" and by
replacing such definition with the following:
"CP Rate" means for any Fixed Period, the per annum
rate equivalent to the weighted average of the per annum rates paid or
payable by VFCC from time to time as interest on or otherwise (by means
of interest rate xxxxxx or otherwise) in respect of the short-term
promissory notes issued by VFCC that are allocated, in whole or in
part, by the Deal Agent (on behalf of VFCC) to fund or maintain the
Contracts during such Fixed Period, as determined by the Deal Agent (on
behalf of VFCC) and reported to the Borrower and the Servicer, which
rates shall reflect and give effect to the reasonable and customary
commissions of placement agents and dealers in respect of such
promissory notes, to the extent such commissions are allocated, in
whole or in part, to such promissory notes by the Deal Agent (on behalf
of VFCC); provided, however, that if any component of such rate is a
discount rate, in calculating the "CP Rate" for such Fixed Period, the
Deal Agent shall for such component use the rate resulting from
converting such discount rate to an interest-bearing equivalent rate
per annum.
(iii) adding the following after the word "months" in
the first line of item (d) in the definition of "Eligible Receivables":
"(or, in the case of a Contract originated under the
Super Alpha Program (as defined in the Credit and Collection Policies),
seventy-two (72) months)"
(iv) deleting the definition of "Final Maturity Date"
and by replacing such definition with the following:
"Final Maturity Date" means July 16, 1999 or, if
extended, in the sole discretion of VFCC and each Investor in
accordance with the terms of Section 2.01(b), the Extension Date.
(v) deleting the definition of "Maximum Facility
Amount" and by replacing such definition with the following:
"Maximum Facility Amount" means at any time,
$200,000,000, as such amount may be adjusted from time to time pursuant
to Section 2.01(c) and Section 2.03,
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provided, however, that at all times, on or after the Termination Date,
the "Maximum Facility Amount" shall mean the aggregate outstanding
principal amount of Advances.
(vi) deleting the word "and" in the fifth line of
item (iii) in the definition of "Portfolio Requirements" and by adding
the following clause after the words "Settlement Period" in the last
line thereof:
", and (c) originated under the Super Alpha Program
(as defined in the Credit and Collection Policies) with an initial
Contract term in excess of sixty (60) months shall not exceed 5% of the
aggregate Contract Principal Balance of Eligible Receivables at the end
of such Settlement Period"
(vii) deleting the definition of "Yield Rate" and by
replacing such definition with the following:
"Yield Rate" For any Fixed Period for all principal
amounts of Advances allocated to such Fixed Period:
(a) to the extent the relevant Lender will be funding
the applicable Advance on the first day of such Fixed Period through
the issuance of commercial paper, a rate equal to the sum of (i) the CP
Rate and (ii) the Applicable Margin for such Fixed Period, and
(b) to the extent the relevant Lender will not be
funding the applicable Advance on the first day of such Fixed Period
through the issuance of commercial paper, a rate equal to the sum of
(i) the Alternative Rate and (ii) the Applicable Margin for such Fixed
Period or such other rate as the Deal Agent and the Borrower shall
agree to in writing.
(b) Section 14.11 is hereby amended by inserting "(a)" before
the first sentence thereof and by adding the following at the end thereof:
"(b) Notwithstanding anything contained in this Agreement,
VFCC shall have no obligation to pay any amount required to be paid by it
hereunder or thereunder to any of the Liquidity Agent, the Documentation Agent,
the Deal Agent or any Investor, in excess of any amount available to VFCC after
paying or making provision for the payment of its Commercial Paper Notes. All
payment obligations of VFCC hereunder are contingent upon the availability of
funds in excess of the amounts necessary to pay Commercial Paper Notes; and each
of the Liquidity Agent, the Documentation Agent, the Deal Agent and each
Investor agrees that they shall not have a claim under Section 101(5) of the
United States Bankruptcy Code if and to the extent that any such payment
obligation exceeds the amount available to the Seller to pay such amounts after
paying or making provision for the payment of its Commercial Paper Notes."
(c) Article XIV is hereby amended by adding the following
section:
"Section 14.12 Investor Assumption of Hedging Instruments.
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Upon a funding of the Liquidity Facility on behalf of the
Investors specified in the Liquidity Purchase Agreement, the following
provisions shall apply with respect to the Hedging Instruments. Capitalized
terms used in this Section 14.12 and not otherwise defined in this Agreement
shall have the meanings ascribed to them in the Liquidity Purchase Agreement:
Each Investor shall assume and hereby does agree to assume a
pro rata interest (equal to its Percentage Interest) in obligations (including,
without limitation, any obligations to make termination payments thereunder) and
duties of VFCC under each Hedging Instrument as of the date of such purchase and
shall also be entitled to a corresponding portion of the rights and benefits of
VFCC under the related Hedging Instrument subsequent to such date.
VFCC shall execute and deliver all Required Assignment
Documentation that may be requested by the Deal Agent or VFCC in connection
therewith."
3. Full Force and Effect. Except as modified by this Amendment
No. 2, the Receivables Funding and Servicing Agreement shall otherwise remain in
full force and effect against any and all of the parties thereunder.
4. Governing Law. This Amendment No. 2 shall be governed by,
and construed in accordance with, the laws of the State of New York, without
reference to its conflicts of laws provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance therewith.
5. Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
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IN WITNESS WHEREOF the parties have executed this Amendment No. 2 as of the date
first above written.
CONSUMER PORTFOLIO SERVICES, INC.,
as Servicer
By: ___________________________________
Name:
Title:
CPS WAREHOUSE CORP., as
Borrower
By: ___________________________________
Name:
Title:
VARIABLE FUNDING CAPITAL CORPORATION,
as a Lender
By: First Union Capital Markets, a
division of Wheat First Securities,
Inc., as attorney-in-fact
By: ___________________________________
Name:
Title:
FIRST UNION CAPITAL MARKETS, a division
of WHEAT FIRST SECURITIES, INC.,
as Deal Agent
By: ___________________________________
Name:
Title:
FIRST UNION NATIONAL BANK, as
Liquidity Agent
By: ___________________________________
Name:
Title:
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FIRST UNION NATIONAL BANK, as
Collateral Agent
By: ___________________________________
Name:
Title:
FIRST UNION NATIONAL BANK, as Investors
By: ___________________________________
Name:
Title:
Commitment: $200,000,000
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