SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to Credit Agreement (the "Second Amendment") is
entered into by and between NAL ACCEPTANCE CORPORATION, a Florida corporation
(the "Borrower"), and CONSECO PRIVATE CAPITAL GROUP, INC., an Indiana
corporation (the "Lender") as of the 1st day of October, 1997.
Recitals
A. Borrower and Lender are parties to a Credit Agreement dated June 23,
1997, as amended by that certain First Amendment to Credit Agreement dated
August 21, 1997 (as amended, the "Credit Agreement").
B. Parties desire to extend the Maturity of the Original Loan and Working
Capital Loan until April 1, 1998, all as more specifically provided hereinafter.
C. The terms used in this Second Amendment with their initial letters
capitalized and which are not defined herein shall have the meanings ascribed to
them in the Credit Agreement.
Amendment
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual
covenants contained herein, and each act done pursuant thereto, the parties
hereby agree as follows:
1. The following definition hereby supersedes and replaces the
corresponding definition set forth in Section 1(b) of the Credit Agreement, as
follows:
"Maturity" with respect to the Original Loan and the Working Capital
Loan means April 1, 1998.
2. The Borrower is herewith entering into the First Replacement Promissory
Note (Original Loan) and the First Replacement Promissory Note (Working Capital
Loan), in the forms attached hereto as Replacement Exhibit "C" and Replacement
Exhibit "C-1", respectively, to evidence the Original Loan and Working Capital
Loan with the new Maturity as defined in Section 1 of this Second Amendment, and
to supersede and replace such Exhibits to the Credit Agreement.
3. This Second Amendment shall not act to release, diminish or in any
manner whatsoever, adversely affect the Lender's security interest in, to or
against any property of the Borrower created by the Loan Documents, and shall be
construed so as to sustain the validity of such security interest. Except as
expressly herein provided, the Credit Agreement and this Second Amendment shall
be interpreted wherever possible in a manner consistent with one another, but in
the event of any irreconcilable inconsistency, this Second Amendment shall
control.
4. The Borrower shall pay all costs incidental to this Second Amendment,
including, but not limited to, attorneys' fees and other legal and documentation
expenses, and any and all other incidental expenses of the Lender in connection
with the amendment of the Credit Agreement as provided herein.
5. This Second Amendment is subject to the Lender receiving
contemporaneously with the execution of this Second Amendment, the following,
each duly executed, dated the date of this Second Amendment and in form and
substance satisfactory to Lender:
(a) A certified copy of the resolutions of the Board of Directors of
the Borrower authorizing the execution, delivery and performance of this
Second Amendment; and
(b) The Replacement Note evidencing the Original Loan and Working
Capital Loan.
6. This Agreement may be executed in counterparts, each of which shall be
deemed an original and all of which shall be deemed one and the same document.
This Agreement and all corresponding Loan Documents may be executed by facsimile
signatures.
IN WITNESS WHEREOF, the parties have caused this Second Amendment to be
duly executed on their behalf all as of the day and year first above written.
NAL ACCEPTANCE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Printed: Xxxxxx X. Xxxxxxxxx
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Title: Chief Executive Officer
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CONSECO PRIVATE CAPITAL GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
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Printed: Xxxxxx X. Xxxx
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Title: Exec. Vice Pres. & CFO
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REPLACEMENT EXHIBIT "C"
FIRST REPLACEMENT PROMISSORY NOTE
(Original Loan)
$5,000,000.00 Indianapolis, Indiana
Date: October 1, 1997
On or before Maturity, NAL ACCEPTANCE CORPORATION, a Florida corporation
(the "Maker"), promises to pay to the order of CONSECO PRIVATE CAPITAL GROUP,
INC., an Indiana corporation (the "Payee"), at 00000 Xxxxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxx, 00000, the outstanding principal sum of Five Million Dollars
($5,000,000.00) or so much of the principal amount of the Loan represented by
this Note as may be disbursed and outstanding by the Payee under the terms of
the Credit Agreement described below, and to pay interest on the unpaid
principal balance outstanding from time to time until Maturity, as herein
provided.
This Note evidences indebtedness incurred or to be incurred by the Maker
under a loan extended to the Maker by the Payee under a Credit Agreement dated
June 23, 1997, as amended by that First Amendment to Credit Agreement dated
August 21, 1997, and the Second Amendment to Credit Agreement of even date
herewith (as the same may be amended from time to time, the "Credit Agreement")
between Maker and Payee, which loan is referred to in the Credit Agreement as
the "Original Loan". All capitalized and designated terms in this Note shall
have the meanings ascribed to them in the Credit Agreement. The principal amount
of the Loan outstanding from time to time shall be determined by reference to
the books and records of the Payee on which all Advances under the Loan and all
payments by the Maker on account of the Loan shall be recorded. Such books and
records shall be deemed prima facie to be correct as to such matters absent
manifest error.
Interest on the unpaid portion of the principal balance of the Loan
outstanding from time to time, until maturity, whether by acceleration or
otherwise, will accrue at the LIBOR Rate, as provided in the Credit Agreement;
provided, however, interest may accrue in certain circumstances at the per annum
rate equal to the Base Rate, as provided in the Credit Agreement. After
maturity, whether by acceleration or otherwise, interest on the unpaid principal
balance of the Loan will accrue at Three Percent (3%) per annum above the
otherwise applicable rate.
Interest on the outstanding balance under this Note will be compounded
monthly on the first day of each month commencing with July 1, 1997, and
continuing on the first day of each consecutive month thereafter and at
Maturity. Accrued interest will be due and payable quarterly commencing on
September 30, 1997, and at the end of each fiscal quarter thereafter and at
Maturity.
The entire principal balance of this Note shall be due and payable together
with accrued interest at Maturity. Principal may be prepaid only as provided in
the Credit Agreement and any such voluntary prepayment shall be applied first to
accrued interest and then to principal installments in their inverse order of
maturity. Principal shall also be prepaid as provided in Section 2(a)(i)(D) of
the Credit Agreement.
Receipt of a check or other item of payment in itself shall not constitute
payment. A payment by check and other item of payment shall, for the purpose of
determining the outstanding principal balance and calculating interest, be
credited (conditional upon final collection) after allowing one (1) Banking Day
for collection. Acceptance by the Payee of any payment which is less than full
payment of the amount due and owing or which is not in immediately available
funds shall not constitute a waiver of the Payee's right to receive payment in
full at such or at any other time in immediately available funds.
All amounts payable under the terms of this Note shall be payable with
attorneys' fees and without notice or protest.
This Note is issued pursuant to, is entitled to the benefit of, and is
subject to the provisions of the Credit Agreement, to which reference is made
hereby for, among other things, the definition of certain proper nouns used
herein, procedures to determine and requirements for interest and principal
payments and prepayments, for a statement of any security for the indebtedness
evidenced hereby, procedures for making Advances and for a statement of
provisions for acceleration of the maturity hereof upon the happening of certain
stated events.
The rights and remedies provided in this Note and the Credit Agreement are
cumulative, are in addition to any other right or remedy of Payee, and may be
exercised successively, concurrently or alternatively. Failure to exercise any
such right or remedy shall not operate as a waiver thereof.
The Maker and any endorsers or guarantors severally waive demand,
presentment for payment and notice of nonpayment of this Note, and each of them
consents to any renewals or extensions of the time of payment hereof without
notice.
If more than one party shall execute this Note, the term Maker as used
herein shall mean all parties signing this Note and each of them, and all such
parties, shall be the jointly and severally obligated and liable hereunder.
If any payment is not paid when due, or if default occurs under the Credit
Agreement or the Loan Documents, after any applicable grace period set forth in
the Credit Agreement or the Loan Documents, the holder may, at its option, after
the giving of any notice and the lapse of any period of grace afforded to Maker
thereunder declare the principal balance of this Note and all accrued interest
immediately due and payable, irrespective of the maturity date specified herein,
with interest thereon from the date of such default at the default rate
specified herein, all without relief from valuation or appraisement laws.
2
This Note is made under and will be governed by the laws of the State of
Florida.
The Payee and the Maker, after consulting or having had the opportunity to
consult with counsel, knowingly, voluntarily and intentionally waive any right
either of them may have to a trial by jury in any litigation based upon or
arising out of this Note, the Credit Agreement, the Loan Documents, or any
related instrument or agreement or any of the transactions contemplated by this
Note or any course of conduct, dealing, statements (whether oral or written), or
actions of either of them. Neither the Payee nor the Maker shall seek to
consolidate, by counterclaim or otherwise, any action in which a jury trial has
been waived with any other action in which a jury trial cannot be or has not
been waived. These provisions shall not be deemed to have been modified in any
respect or relinquished by either the Payee or the Maker except by a written
instrument executed by both of them.
This Note supersedes and replaces that certain Promissory Note dated June
23, 1997, from Maker to Payee in the original principal amount of Five Million
Dollars ($5,000,000) Notice of acceptance of this Note in replacement thereof is
hereby waived.
IN WITNESS WHEREOF, Maker has executed this Note at __________________,
__________________ as of the date first hereinabove written.
NAL ACCEPTANCE CORPORATION
By:
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Printed:
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Title:
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REPLACEMENT EXHIBIT "C-1"
FIRST REPLACEMENT PROMISSORY NOTE
(Working Capital Loan)
$5,000,000 Indianapolis, Indiana
Date: October 1, 1997
On or before Maturity, NAL ACCEPTANCE CORPORATION, a Florida corporation
(the "Maker"), promises to pay to the order of CONSECO PRIVATE CAPITAL GROUP,
INC., an Indiana corporation (the "Payee"), at 00000 Xxxxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxx, 00000, the outstanding principal sum of Five Million Dollars
($5,000,000) or so much of the principal amount of the Working Capital Loan
represented by this Note as may be disbursed and outstanding by the Payee under
the terms of the Credit Agreement described below, and to pay interest on the
unpaid principal balance outstanding from time to time until Maturity, as herein
provided.
This Note evidences indebtedness incurred or to be incurred by the Maker
under a loan extended to the Maker by the Payee under a Credit Agreement dated
June 23, 1997, as amended by that certain First Amendment to Credit Agreement
dated August 21, 1997, and the Second Amendment to Credit Agreement of even date
herewith (as the same may be amended from time to time, the "Credit Agreement")
between Maker and Payee, which loan is referred to in the Credit Agreement as
the "Working Capital Loan". All capitalized and designated terms in this Note
shall have the meanings ascribed to them in the Credit Agreement. The principal
amount of the Working Capital Loan outstanding from time to time shall be
determined by reference to the books and records of the Payee on which all
Advances under the Working Capital Loan and all payments by the Maker on account
of the Working Capital Loan shall be recorded. Such books and records shall be
deemed prima facie to be correct as to such matters absent manifest error.
Interest on the unpaid portion of the principal balance of the Working
Capital Loan outstanding from time to time, until maturity, whether by
acceleration or otherwise, will accrue at the LIBOR Rate, as provided in the
Credit Agreement; provided, however, interest may accrue in certain
circumstances at the per annum rate equal to the Base Rate, as provided in the
Credit Agreement. After maturity, whether by acceleration or otherwise, interest
on the unpaid principal balance of the Working Capital Loan will accrue at Three
Percent (3%) per annum above the otherwise applicable rate.
Interest on the outstanding balance under this Note will be compounded
monthly on the first day of each month commencing with September 1, 1997, and
continuing on the first day of each consecutive month thereafter and upon
Maturity. Accrued interest will be due and payable quarterly commencing on
September 30, 1997, and at the end of each fiscal quarter, if any, thereafter
and upon Maturity.
The entire principal balance of this Note shall be due and payable together
with accrued interest at Maturity.
Receipt of a check or other item of payment in itself shall not constitute
payment. A payment by check and other item of payment shall, for the purpose of
determining the outstanding principal balance and calculating interest, be
credited (conditional upon final collection) after allowing one (1) Banking Day
for collection. Acceptance by the Payee of any payment which is less than full
payment of the amount due and owing or which is not in immediately available
funds shall not constitute a waiver of the Payee's right to receive payment in
full at such or at any other time in immediately available funds.
All amounts payable under the terms of this Note shall be payable with
attorneys' fees and without notice or protest.
This Note is issued pursuant to, is entitled to the benefit of, and is
subject to the provisions of the Credit Agreement, to which reference is made
hereby for, among other things, the definition of certain proper nouns used
herein, procedures to determine and requirements for interest and principal
payments and prepayments, and for a statement of any security for the
indebtedness evidenced hereby. The Working Capital Loan evidenced hereby
constitutes a portion of the "Loan" as defined in the Credit Agreement, payment
of which is secured by the Loan Documents.
The rights and remedies provided in this Note and the Credit Agreement are
cumulative, are in addition to any other right or remedy of Payee, and may be
exercised successively, concurrently or alternatively. Failure to exercise any
such right or remedy shall not operate as a waiver thereof.
The Maker and any endorsers or guarantors severally waive demand,
presentment for payment and notice of nonpayment of this Note, and each of them
consents to any renewals or extensions of the time of payment hereof without
notice.
If more than one party shall execute this Note, the term Maker as used
herein shall mean all parties signing this Note and each of them, and all such
parties shall be jointly and severally obligated and liable hereunder.
If any payment is not paid when due, or if default occurs under the Credit
Agreement or the Loan Documents occurs and is continuing after any applicable
grace period set forth in the Credit Agreement or the Loan Documents, the holder
may, at its option, declare the principal balance of this Note and all accrued
interest immediately due and payable, with interest thereon from the date of
such default at the default rate specified herein, all without relief from
valuation or appraisement laws.
This Note is made under and will be governed by the laws of the State of
Florida.
The Payee and the Maker, after consulting or having had the opportunity to
consult with counsel, knowingly, voluntarily and intentionally waive any right
either of them may have to a trial by jury in any litigation based upon or
arising out of this Note, the Credit Agreement, the Loan Documents, or any
related instrument or agreement or any of the transactions contemplated by this
Note or any course of conduct, dealing, statements (whether oral or written), or
actions of either of them. Neither the Payee nor the Maker shall seek to
consolidate, by counterclaim or otherwise, any action in which a jury trial has
been waived with any other action in which a jury trial cannot be or has not
been waived. These provisions shall not be deemed to have been modified in any
respect or relinquished by either the Payee or the Maker except by a written
instrument executed by both of them.
2
This Note supersedes and replaces that certain Promissory Note dated August
21, 1997 from Maker to Payee in the original principal amount of Five Million
Dollars ($5,000,000). Notice of acceptance of this Note in replacement thereof
is hereby waived.
IN WITNESS WHEREOF, Maker has executed this Note at __________________,
__________________ as of the date first hereinabove written.
NAL ACCEPTANCE CORPORATION
By:
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Printed:
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Title:
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