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EXHIBIT 10.63
THIRD AMENDMENT
TO
SUBORDINATED CERTIFICATE AND
NET INTEREST MARGIN CERTIFICATE
FINANCING FACILITY AGREEMENT
This THIRD AMENDMENT TO THE SUBORDINATED CERTIFICATE AND NET INTEREST
MARGIN CERTIFICATE FINANCING FACILITY AGREEMENT (this "Amendment"), dated as of
January 31, 1997, by and among CARGILL FINANCIAL SERVICES CORPORATION, a
Delaware corporation, (the "Lender"), OFL-A RECEIVABLES CORP., a Delaware
corporation and a direct, wholly-owned subsidiary of ACC Consumer Finance
Corporation (as successor to American Credit Corporation) (the "Borrower"), and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association, as
paying agent (the "Paying Agent"), amends that certain Subordinated Certificate
and Net Interest Margin Certificate Financing Facility Agreement, dated as of
September 1, 1995, by and among the Lender, the Borrower, and the Paying Agent,
as amended by the First Amendment dated as of March 31, 1996 and the Second
Amendment dated as of August 30, 1996 (collectively, the "SNIM Agreement").
WHEREAS, the parties hereto desire to amend the SNIM Facility in
certain respects.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. AMENDMENTS TO SECTION 1.
(a) The definition of "Annual Commitment Fee" is hereby amended in its
entirety to read as follows:
"Annual Commitment Fee" means $100,000 per annum, payable in
accordance with Section 7(c) hereof."
(b) The definition of "Collateral Event" is hereby amended in its
entirety to read as follows:
"Collateral Event" means, with respect to any Eligible Contracts
financed under the Repurchase Facility or any Eligible Contract
Pool, the occurrence of any of the following events during any
Monthly Period: (a) a trailing three-month annualized net
charge-off rate equal to or greater than ten
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percent (10.00%), (b) a trailing six-month annualized net
charge-off rate equal to or greater than nine percent (9.00%), (c)
a trailing three-month delinquency rate equal to or greater than
nine percent (9.00%), (d) a trailing six-month delinquency rate
equal to or greater than eight percent (8.00%), (e) a trailing
three-month annualized repossession rate equal to or greater than
eighteen percent (18.00%), or (f) a trailing six month annualized
repossession rate equal to or greater than seventeen percent
(17.00%).
(c) The definition of "Financing Facility Maximum Amount" is hereby
amended in its entirety to read as follows:
"Financing Facility Maximum Amount" means the lesser of (a) the sum
of Aggregate Borrowing Base and accrued and unpaid Commitment Fees,
Paying Agent Fees and other fees or expenses owing to the Lender
hereunder, and (b) $10,000,000.
2. AMENDMENT TO SECTION 2.
(a) Section 2(a)(xv) is hereby amended in its entirety to read as
follows:
(xv) After the making of such Advance, each of the following tests
shall be satisfied: (A) the Aggregate Facility Balance shall not
exceed $10,000,000, and (B) the Aggregate Facility Balance shall
not equal or exceed the Aggregate Borrowing Base;
3. AMENDMENT TO SECTION 7(c)
(a) Section 7(c) is hereby amended in its entirety to read as follows:
(c) Until the later of the Advance Termination Date and the date
upon which the Aggregate Facility Balance shall have been reduced
to zero (after giving effect to the application of the deemed Cash
Receipt pursuant to the next sentence), the Borrower shall pay to
the Lender the Annual Commitment Fee as follows: $25,000 on the
last day of each calendar quarter, beginning with March 31, 1997.
Notwithstanding the above, if the Borrower's obligation to pay the
Annual Commitment Fee terminates in accordance with the preceding
sentence on any day (other than the last day of a calendar quarter,
in which case, no $25,000 payment shall be required), then that
portion of the Annual Commitment Fee paid by the Borrower but not
earned by the Lender (based upon the actual number of days
remaining in such quarter divided by the actual number of days in
such quarter) shall be deemed to be a Cash Receipt and applied
against the Aggregate Facility Balance in accordance with Section
2(g) hereof.
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4. MISCELLANEOUS. All provisions of the SNIM Agreement, other than those
expressly amended by this Amendment, shall remain in full force and effect. This
Amendment may be executed in any number of counterparts, each of which when so
delivered shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed and delivered by its duly authorized officer on the
date first set forth above.
The "Lender":
CARGILL FINANCIAL SERVICES
CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx A. Z. Xxxxxxxxx
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Xxxxxxx A.Z. Xxxxxxxxx
Vice President
The "Borrower":
OFL-A RECEIVABLES CORP.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Director
The "Paying Agent":
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
Corporate Trust Officer
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Acknowledgment:
ACC Consumer Finance Corporation, a Delaware corporation, and successor
by merger of American Credit Corporation, hereby consents to the foregoing
amendments to the SNIM Agreement and confirms that its ACC Limited Guarantee
dated as of September 1, 1995, issued in favor of Lender applies to the SNIM
Agreement, as amended by the foregoing Third Amendment dated as of January 31,
1997.
ACC CONSUMER FINANCE
CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chairman of the Board and
Chief Executive Officer
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