Exhibit 10.3
EXECUTION COPY
AMENDMENT NO. 3 TO, AND WAIVER WITH RESPECT TO,
AMENDED AND RESTATED WAREHOUSE AND SECURITY AGREEMENT
This AMENDMENT NO. 3 TO, AND WAIVER WITH RESPECT TO, AMENDED AND
RESTATED WAREHOUSE AND SECURITY AGREEMENT (this "Amendment and Waiver") is made
as of March 31, 2003, to that certain Amended and Restated Warehouse and
Security Agreement, dated as of March 15, 2002, among TFC Warehouse Corporation
I (the "Borrower"), a Delaware corporation, The Finance Company (in its capacity
as initial purchaser of Contracts from Approved Dealers, "TFC" and, in its
capacity as servicer of the Contracts, the "Servicer"), a Virginia corporation,
▇▇▇▇▇ Fargo Bank Minnesota, National Association (the "Collateral Agent"), a
national banking association, and Westside Funding Corporation (the "Lender"), a
Delaware corporation, as modified pursuant to the waiver letter agreement dated
March 15, 2002 by and among the Borrower, TFC, the Collateral Agent and the
Lender, and consented to by Royal Indemnity Company (the "Insurer"), as insurer,
as amended by Amendment No. 1 to, and Waiver with Respect to, Amended and
Restated Warehouse and Security Agreement, dated as of July 22, 2002, among, the
Borrower, TFC, the Collateral Agent and the Lender, and consented to by the
Insurer, and as amended by Amendment No. 2 to, and Waiver with Respect to,
Amended and Restated Warehouse and Security Agreement, dated as of August 28,
2002, among, the Borrower, TFC, the Collateral Agent and the Lender, and
consented to by the Insurer (the "Loan Agreement").
W I T N E S S E T H:
WHEREAS, the Borrower, TFC, the Collateral Agent and the Lender have
entered into the Loan Agreement;
WHEREAS, TFC has informed the Borrower, the Collateral Agent, the
Lender and the Insurer that TFC Enterprises, Inc. ("TFCEI"), which owns 100% of
the outstanding stock of TFC, expects to enter into a merger agreement (the
"Merger Agreement") with Consumer Portfolio Services, Inc. and CPS Mergersub,
Inc. ("CPS Sub"), pursuant to which CPS Sub will merge in and to TFCEI (such
merger, if any, the "TFC Acquisition Transaction");
WHEREAS, TFC has further informed the Borrower, the Collateral Agent,
the Lender and the Insurer that TFC expects to receive from its independent
accountants, with respect to the audited financial statements for TFC for fiscal
year 2002, an opinion that is qualified as to going concern (such opinion
letter, if any, the "Going Concern Letter");
WHEREAS, the Lender wishes to waive certain Events of Default and
corresponding Funding Termination Events under the Loan Agreement that may
directly result from TFC's receipt of the Going Concern Letter, if any, to the
extent provided herein;
WHEREAS, the Lender wishes to waive certain Trigger Events and Events
of Default arising from certain Auto Centers Delinquency Ratios, to the extent
provided herein; and
WHEREAS, the Borrower, TFC, the Collateral Agent and the Lender wish to
amend the Loan Agreement as 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 Amendment and 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 Loan Agreement.
Section 1.02. Waivers of Certain Events of Default and Trigger Events.
(a) (i) To the extent that TFC's receipt of the Going Concern
Letter, if any, will result in a breach by TFC of the covenant contained in
Section 7.02(rr) of the Loan Agreement and to the extent that any such breach
will result in an Event of Default under Section 8.01(i) of the Loan Agreement,
the Lender, subject to Section 1.02(b) of this Amendment and Waiver, hereby
waives such Event of Default and the Funding Termination Event that would
otherwise occur because of such Event of Default.
(ii) To the extent that TFC's receipt of the Going
Concern Letter, if any, will constitute a Material Adverse Change with respect
to TFC that results in an Event of Default under Section 8.01(u) of the Loan
Agreement, the Lender, subject to Section 1.02(b) of this Amendment and Waiver,
hereby waives such Event of Default and the Funding Termination Event that would
otherwise occur because of such Event of Default.
(iii) The Lender, subject to Section 1.02(b) of this
Amendment and Waiver, hereby waives any Trigger Event that may occur or be
continuing on or after the date of this Amendment and Waiver as a result of the
Auto Centers Delinquency Ratio as of any Determination Date being equal to or
greater than 7.00%.
(iv) The Lender, subject to Section 1.02(b) of this
Amendment and Waiver, hereby waives (A) any Event of Default pursuant to Section
8.01(l) of the Loan Agreement that may occur or be continuing on or after the
date of this Amendment and Waiver as a result of the Auto Centers Delinquency
Ratio as of any date of determination being equal to or greater than 9.00% and
(B) the Funding Termination Event that would otherwise occur because of such
Event of Default.
(b) Notwithstanding any contrary provision herein, the waivers
contained in Section 1.02(a) shall be effective only during the period from and
including the date on which TFC delivers a copy of the Going Concern Letter, if
any, to the Lender and the Insurer until the earliest of (i) April 14, 2003, if
the Merger Agreement has not been executed by that date (or such earlier date as
TFCEI, CPS and CPS Sub announce a termination of the negotiations with respect
to the TFC Acquisition Transaction), (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 (or
such earlier date as the Merger Agreement has been terminated). In the event the
period of the effectiveness of the waivers contained in Section 1.02(a)
terminates under any of clauses (i), (ii) or (iii) of this Section 1.02(b), any
Event of Default and Funding Termination Event that would have occurred in the
absence of such waivers shall be deemed to have occurred as of the date of such
termination, without the need for further action by any of the parties.
(c) Nothing contained in this Section 1.02 shall constitute
a waiver of any Event of Default under any provision of the Loan Agreement other
than Sections 8.01(i), 8.01(l) or 8.01(u) thereof. Nothing contained in this
Section 1.02 shall constitute a waiver of any Event of Default pursuant to
Section 8.01(i) of the Loan Agreement that may arise from any failure by any TFC
Party or the Servicer (if TFC is the Servicer) to perform or observe any term,
covenant or agreement under the Loan Agreement, the Note or any other Loan
Document, other than a breach by TFC of the covenant contained in Section
7.02(rr) of the Loan Agreement, which breach consists of TFC's receipt of the
Going Concern Letter, if any. Nothing contained in this Section 1.02 shall
constitute a waiver of any Event of Default pursuant to Section 8.01(u) of the
Loan Agreement that may arise from any Material Adverse Effect with respect to
the Collateral or the Lender's rights under the Loan Agreement, the Note or any
other Loan Document or that may arise from any Material Adverse Change with
respect to any TFC Party other than TFC's receipt of the Going Concern Letter,
if any.
Section 1.03. Conditions Precedent to Waivers. Each of the waivers set
forth in Section 1.02 of this Amendment and Waiver is subject to the
satisfaction of each of the following conditions precedent: (i) no breach of any
representation and warranty set forth in Article VI of the Loan Agreement shall
have occurred and be continuing; (ii) no representation set forth in Article VI
of the Loan Agreement shall contain any statement that is false or, in the
context in which such statement is made, misleading; (iii) all information
provided to Insurer and Lender in connection with the negotiation and execution
of this Amendment and Waiver shall have been, at the time such information was
so provided, and shall be, as of the date of this Amendment and Waiver, accurate
in all material respects; and (iv) Borrower and TFC have disclosed to Lender and
Insurer all facts, events and occurrences prior to the date of this Amendment
and Waiver that constituted an Event of Default or a Funding Termination Event.
Section 1.04. Amendment to Definition of "Required Reserve Account
Percentage". Appendix A to the Loan Agreement is hereby amended, effective the
date hereof, by replacing the definition of the term "Required Reserve Account
Percentage" with the following definition:
"Required Reserve Account Percentage" means, (i) if a Trigger Event
shall not be in effect, 2.0% or (ii) if a Trigger Event shall have
occurred and be continuing, 5.0%; provided, however, that the Required
Reserve Account Percentage shall be 5.0% on and after the earliest of
(i) April 14, 2003, if the Merger Agreement has not been executed by
that date (or such earlier date as TFCEI, CPS and CPS Sub announce a
termination of the negotiations with respect to the TFC Acquisition
Transaction), (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 (or such earlier date as the Merger Agreement has been
terminated). For the purposes of this definition, the terms "Merger
Agreement" and "TFC Acquisition Transaction" shall have the respective
meanings ascribed thereto in the second recital to Amendment No. 3 to,
and Waiver with Respect to, Amended and Restated Warehouse and Security
Agreement, dated as of March 31, 2003, among, the Borrower, TFC, the
Collateral Agent and the Lender, and consented to by the Insurer.
Section 1.05. Effect of Amendment and Waiver. Upon effectiveness of
this Amendment and Waiver, the Loan Agreement shall be, and be deemed to be,
modified and
amended in accordance herewith and the respective rights, limitations,
obligations, duties, liabilities and immunities of the Borrower, TFC, the
Lender, the Collateral Agent and each third party beneficiary of the Loan
Agreement shall hereafter be determined, exercised and enforced subject in all
respects to such modifications and amendments, and all the terms and conditions
of this Amendment and Waiver shall be and be deemed to be part of the terms and
conditions of the Loan Agreement for any and all purposes. All other terms and
conditions of the Loan Agreement shall not be modified or amended and shall
remain in full force and effect.
Section 1.06. Construction of Amendment and Waiver in Relation to
Original Agreement. In case of any inconsistency between any provisions of this
Amendment and Waiver and any provisions of the Loan Agreement prior to this
Amendment and Waiver, the provisions of this Amendment and Waiver shall control.
Section 1.07. Governing Law. This Amendment and 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 1.08. Severability of Provisions. If one or more of the
provisions of this Amendment and Waiver shall be for any reason whatever held
invalid or unenforceable, such provision(s) shall be deemed severable from the
remaining covenants, agreements and provisions of this Amendment and Waiver and
shall in no way affect the validity or enforceability of such remaining
provisions or the rights of any parties hereto or third party beneficiaries
hereof.
Section 1.09. Binding Effect. The provisions of this Amendment and
Waiver shall be binding upon and inure to the benefit of the parties hereto and
third party beneficiaries of the Loan Agreement and their respective successors
and permitted assigns.
Section 1.10. Counterparts. This Amendment and 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, the parties hereto have caused this
Amendment and Waiver to be duly executed by their respective officers thereunto
duly authorized, as of the day first above written.
WESTSIDE FUNDING CORPORATION
By: WestLB AG, New York Branch,
as Administrator
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
TFC WAREHOUSE CORPORATION I
By: /s/ ▇▇▇▇▇▇ ▇. Tray
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Name: ▇▇▇▇▇▇ ▇. Tray
Title: President
THE FINANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. Tray
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Name: ▇▇▇▇▇▇ ▇. Tray
Title: President
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Corporate Trust Officer
Consented to as of the date first above:
ROYAL INDEMNITY COMPANY
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Operations Manager