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EXHIBIT 10.46
CONSENT AND AMENDMENT TO FOURTH AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
This Consent and Amendment to Fourth Amended and Restated Loan
and Security Agreement (this "Amendment") is dated as of the 29th day of
October, 1996, by and among First Merchants Acceptance Corporation
("Borrower"), LaSalle National Bank ("LaSalle"), NBD Bank, ("NBD"), Firstar
Bank Milwaukee, N.A. ("Firstar"), Xxxxxx Trust and Savings Bank ("Xxxxxx"), The
Boatmen's National Bank of St. Louis ("Boatmen's"), First Bank, National
Association ("First"), CoreStates Bank, N.A. ("CoreStates"), Fleet Bank,
National Association, f/k/a Natwest Bank N.A. ("Fleet"), and Mellon Bank, N.A.
("Mellon") (LaSalle, NBD, Firstar, Xxxxxx, Boatmen's, First, CoreStates, Fleet
and Mellon are hereinafter referred to individually as "Lender" and
collectively as "Lenders" and LaSalle in a separate capacity as Agent for
Lenders under the "Loan Agreement" (as hereinafter defined) is hereinafter
referred to as "Agent").
R E C I T A L S
A. Borrower, Lenders and Agent are parties to a Fourth
Amended and Restated Loan and Security Agreement dated as of February 28, 1996
(including all exhibits and riders thereto and as supplemented and amended
prior hereto or hereafter, referred to herein as the "Loan Agreement");
B. Borrower desires to amend the Loan Agreement to (i) permit
the issuance of $51,750,000 of Subordinated Reset Notes pursuant to an
Indenture dated as of October 15, 1996 between Borrower and LaSalle National
Bank, as trustee and (ii) provide certain modifications to the Loan Agreement
in connection therewith; and
C. Agent and Lenders are willing to consent to the issuance
of such Subordinated Reset Notes and to agree to such amendments on the terms
and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements of the parties contained herein and for other good and valuable
consideration, the receipt of which is hereby acknowledged, Borrower, Agent and
Lenders agree as follows:
Section 1. Recitals. The Recitals to this Amendment are hereby
incorporated herein in their entirety by this reference thereto and deemed to
be a part hereof.
Section 2. Amendments to Loan Agreement. Subject to the terms
of this Amendment, the Loan Agreement is hereby amended as follows:
2.1 Section 1 of the Loan Agreement is hereby amended to add
the following new defined terms:
"Additional Indenture" means that certain Indenture between
Borrower and LaSalle National Bank, as trustee dated as of
October 15, 1996.
2.2 The definitions of "Noteholders", "Notes" and
"Permitted Noteholder Payments" appearing in Section 1 of the Loan
Agreement are hereby amended and restated in their entirety to read as
follows:
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"Noteholders shall have the meanings ascribed thereto in the
Indenture and Additional Indenture."
"Notes shall have the meanings ascribed thereto in the Indenture
and Additional Indenture."
"Permitted Noteholder Payments shall mean Permitted Payments as
defined in Section 16.2 of the Indenture and Section 16.2 of the
Additional Indenture.:
2.3 Section 17(n) of the Loan Agreement is hereby amended by
adding the words "and Additional Indenture" after the word "Indenture" wherever
it appears in the first full sentence thereof, and by adding the words "or
Additional Indenture" after the word "Indenture" where it appears in the second
full sentence thereof.
2.4 Section 18(b)(iii) of the Loan Agreement is hereby amended
in its entirety to read as follows:
"(iii) Subordinated Indebtedness to Noteholders up to the
aggregate principal sum of $14,375,000, plus all interest, fees
and expenses payable by Borrower under the Indenture and
Subordinated Indebtedness to Noteholders up to the aggregate
principal sum of $51,750,000, plus all interest, fees and
expenses payable by Borrower under the Additional Indenture;"
2.5 Section 19(d) of the Loan Agreement is hereby amended in
its entirety to read as follows:
"(d) an "Event of Default" (as defined in the Indenture or
Additional Indenture) shall occur under the terms of the
Indenture or Additional Indenture, or Borrower or any of its
subsidiaries shall be in default of any term, covenant,
obligation or condition under the Securitization Transaction
Documents which has not been cured within the time provided
therein, if any;"
Section 3. Representation of the Warranties. To induce Lenders
to amend the Loan Agreement, Borrower represents and warrants to Lenders that:
3.1 Compliance with Loan Agreement. On the date hereof,
Borrower is in compliance with the terms and provisions of the Loan Agreement
and no Event of Default specified therein has occurred.
3.2 Representations and Warranties. On the date hereof, the
representations and warranties set forth in the Loan Agreement are true and
correct with the same effect as if such representations and warranties have
been made on the date hereof except to the extent such representations and
warranties expressly relate to an earlier date.
3.3 Authority of Borrower. Borrower has full power and
authority to enter into this Amendment and the Additional Indenture, which has
been duly authorized by all proper and necessary corporate action. No consent
or approval of any public authority or regulatory body
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or any other party is required as a condition to the validity or enforceability
of this Amendment or the Additional Indenture.
3.4 Amendment as Binding Agreement. This Amendment
constitutes a valid and legally binding obligation of Borrower, fully
enforceable against Borrower in accordance with its terms.
Section 4. Conditions Precedent. The agreement by Lenders to
amend the Loan Agreement pursuant to the terms of this Amendment is subject to
the following conditions precedent:
4.1 Evidence of Authority. Agent shall have received evidence
of the authorization of Borrower to enter into this Amendment by its Board of
Directors in form acceptable to Agent.
Section 5. Consent. Subject to the terms hereof, Agent and
Lenders consent to Borrower entering into, executing and performing its
obligations under the Additional Indenture.
Section 6. General Provisions.
6.1 Except as amended by this Amendment, the terms and
provisions of the Loan Agreement are in all other respects ratified and
confirmed and remain in full force and effect. In the event of a conflict
between the terms of the Loan Agreement and the terms of this Amendment, the
terms of this Amendment shall be controlling.
6.2 After the effective date hereof, all references in the
Loan Agreement and in all related agreements and documents to "Agreement",
"hereof", or the like shall refer to the Loan Agreement as herein amended or
modified.
6.3 This Amendment shall not constitute a waiver of any
existing events of default or any other provisions of the Loan Agreement as
amended hereby, except as expressly set forth herein, and shall not constitute
a course of dealing with respect to any such events of default or an agreement
to further consents, amendments or waivers under the Loan Agreement. Agent and
Lenders expressly reserve their rights and remedies, none of which shall be
deemed to be waived hereby.
6.4 Borrower hereby agrees to pay all reasonable out-of-pocket
expenses incurred by Agent in connection with the preparation, negotiation and
consummation of this Amendment and all other documents related thereto,
including, without limitation, the fees and expenses of Agent's counsel.
6.5 This Amendment shall be construed in accordance with and
governed by the laws of the State of Illinois and the obligations of Borrower
under this Amendment are and shall arise absolutely unconditionally upon the
execution and delivery of this Amendment. This Amendment may be executed in
counterparts.
6.6 Capitalized terms used herein which are defined in the
Loan Agreement, shall unless otherwise defined herein, have the meanings
provided in the Loan Agreement.
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IN WITNESS WHEREOF, Agent, Borrower and Lenders have caused this
Amendment to be duly executed as of the date first above written.
FIRST MERCHANTS ACCEPTANCE CORPORATION
By: _______________________________
Title: _______________________________
LASALLE NATIONAL BANK
By: _______________________________
Title: _______________________________
NBD BANK
By: _______________________________
Title: _______________________________
FIRSTAR BANK MILWAUKEE, N.A.
By: _______________________________
Title: _______________________________
XXXXXX TRUST AND SAVINGS BANK
By: _______________________________
Title: _______________________________
FIRST BANK, NATIONAL ASSOCIATION
By: _______________________________
Title: _______________________________
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
By: _______________________________
Title: _______________________________
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FLEET BANK, NATIONAL ASSOCIATION
By: _______________________________
Title: _______________________________
CORESTATES BANK, N.A.
By: _______________________________
Title: _______________________________
MELLON BANK, N.A.
By: _______________________________
Title: _______________________________
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